C2003/5673, Transcript of Proceedings [2003] AIRCTrans 5545 (11 December 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N F10712
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2003/5673

NATIONAL UNION OF WORKERS

and

GEORGE WESTON FOODS LIMITED
TRADING AS BISCUIT AND CAKE
DIVISION ABBOTSFORD AND ANOTHER

Application under section 170LW of the
Act for settlement of dispute re alleged
failure to observe terms and conditions
of the agreement

MELBOURNE

10.01 AM, THURSDAY, 27 NOVEMBER 2003

Continued from 11.11.03

PN1221

THE DEPUTY PRESIDENT: No changes to the appearances?

PN1222

MR LYONS: I no longer appear with Mr Portelli, your Honour, just for the record.

PN1223

THE DEPUTY PRESIDENT: Thanks, Mr Lyons.

PN1224

MR O'GRADY: And also for the record, your Honour, I am appearing by myself on behalf of George Weston Foods.

PN1225

THE DEPUTY PRESIDENT: Thank you, Mr O'Grady. There is apparently a group of NUW delegates going to come into the court to observe at some stage, Mr Lyons. I just thought I would tell you that in case you wanted to save the best bits. I think they are due at about 10.30 or thereabouts.

PN1226

MR LYONS: Yes, your Honour. I understand we have a training course and they come down and see the proceedings of the Commission for their information.

PN1227

MR O'GRADY: If the Commission pleases, we are not probably in the best courtroom for that particular event today.

PN1228

THE DEPUTY PRESIDENT: No, it doesn't appear so. Yes, go ahead, Mr Lyons.

PN1229

MR LYONS: Your Honour, the remaining matters in relation to these proceedings are for the parties to present some closing argument. Your Honour has had the benefit of the originally filed submissions which were reasonably exhaustive in their terms, and presumably your Honour has had an opportunity to refresh your memory about the content of those submissions. As far as the union is concerned, much of what we seek to put is contained and dealt with in those submissions but we do intend to take your Honour through those, as well as making some additional observations that arise out of the evidence in the first instance; and, secondly, in relation to a couple of decisions - one of this Commission and one of the Federal Court of Australia - which were handed, in fact, in both cases subsequent to the hearing of the evidence in relation to this matter, but certainly subsequent to the filing of the submissions in relation to the issue.

PN1230

Your Honour, by way of opening we say that the arrangements that are before you in terms of the allegations of where employment relationship exists essentially are, there is a sham relationship that is put to you against the position that we encourage you to adopt. We say there is a set of arrangements which is clear on the facts which should indicate to your Honour that there is a contract of employment that exists between the 12 relevant employees and George Weston Foods. And a number of things hang off that, not least of which is the fact that the enterprise agreement, which covers the work they perform, therefore relevantly applies to them.

PN1231

We say that the evidence makes out that the suggestion that these people are solely employees of Ready Workforce is a sham arrangement and an illegitimate arrangement that was done for one of two reasons: firstly, either to avoid the industrial obligations of George Weston Foods and, secondly, to attempt to hide from both the employees themselves and a body whom the matters were brought before, such as the Commission, the true nature of those arrangements. And your Honour should look behind what is the stated position of the two employers to look at what the actual factual situation as it exists at the Tottenham warehouse is. And we say that that will very clearly, and very clearly establishes that there is an employment contract relationship between these employees and George Weston Foods.

PN1232

Essentially, the way we characterise that relationship, your Honour, is that there is an employment relationship between the employees and George Weston Foods, and that the function of Ready Workforce is to act as the paymaster. So the only basis on which Ready Workforce interposes in that employment relationship is for the purposes of paying the wages. It essentially provides the same services of some of those companies which provide payroll services to companies. It simply channels the money. The consideration is channelled between George Weston Foods and the employees via the third party. All other tests that can relevantly be applied to the relationship established that there is a contract of employment between George Weston Foods and the 12 employees. And so we ask you to find that way and a number of things stem from that.

PN1233

Your Honour, if I can turn, however, first of all to the written submissions that we filed on behalf of the employees and step you through the matters which we say you need to come with us on in order to make the determination we seek. First of all we say that the 12 employees are engaged as store workers and that they perform work at the GWF warehouse in Tottenham. I don't think that is at issue.

PN1234

We say that they perform work which is within the scope of the enterprise bargaining agreement. We say that was established both by the evidence of Mr Timmins and the evidence of Mr McGuckin on behalf of the union. Your Honour will recall that both those witnesses were asked questions, either in examination in-chief or under cross examination, about the nature of the work performed by the employees. You will recall that the answers to those questions was that they were engaged in standard warehousing functions which included the driving of forklifts, the picking, packing and dispatch of product to customers, as well as the receiving and put away.

PN1235

Now, those types of work are exactly the types of work or - I am sorry. Some of the types of work which are covered relevantly by the enterprise agreement under which the union has made its notification. And your Honour will recall that under the classification structure of that agreement the phrases picking, packing, forklift driving and these terms - which were exactly the terms that Mr McGuckin and Mr Timmins used - do appear in that agreement. And so we say it is beyond question, based on the evidence before you, that the work that is performed by the employees is caught by the scope of the enterprise bargaining agreement.

PN1236

Further, you have direct evidence before you that Mr McGuckin, who is one of the employees on whose behalf these proceedings are taken, is a delegate and member of the National Union of Workers. And, further, that the NUW, we say, is entitled to represent Mr McGuckin's industrial interests based on his description of the work he performed, that description not being - well, being agreed with by Mr Timmins, though standard form of warehousing work is within the scope of the NUWs eligibility and industry rule and within the scope of awards of this Commission which apply to that work, for example, the Storage Services (General) Award, with which your Honour is well familiar.

PN1237

THE DEPUTY PRESIDENT: While we are on that subject, Mr Lyons, can I just take you to the parties bound provision of the agreement itself.

PN1238

MR LYONS: Yes, your Honour.

PN1239

THE DEPUTY PRESIDENT: And it speaks of the parties to this agreement, being George Weston Foods on the one hand:

PN1240

...the following union employees of George Weston Foods Limited trading as The Biscuit and Cake Division Victoria who are members or who are eligible to be members of the Transport Workers Union (TWU) employed in classifications or occupations listed in the Transport Workers (Mixed Industry) Award or any successor awards.

PN1241

What do you say to that particular provision, Mr Lyons?

PN1242

MR LYONS: Your Honour, we say, firstly, that there appears to be a discrepancy between the provisions of clause 2 and the scope of the classification structure. Put simply, your Honour, the classification structure appears on its face to be broader than the scope that is provided for under the parties bound provision; that is, the classifications go beyond that which is covered by the Mixed Industries Award which, in simple terms, is a drivers award, sir, rather than a warehousing award.

PN1243

However, we don't say - the approach that your Honour ought take is not one that says, well, I read down the classification structure by reference to the parties bound provision. There is a clear and objective intention of the parties by reference to the classification structure that the agreement covers this particular work. I think the most obvious explanation, your Honour, is that the parties simply made an error in drafting the parties bound clause because there is a clear intention that the agreement covers certain types of work.

PN1244

They haven't, for example, simply adopted the classification structure of the award and simply provided wage rates or classification rates. The parties went to the trouble of inserting a specific classification structure and, we say on the face of the document, it is not open to the Commission to read down that structure by reference to the parties bound provision.

PN1245

THE DEPUTY PRESIDENT: Yes. Thank you.

PN1246

MR LYONS: While I am on that subject perhaps, your Honour, there is something made in my friend's submission that all of the employees - or to be covered by the agreement an employee has to be eligible - a member or eligible to be a member of the Transport Workers Union; and that we either have to concede that point or find some other way around it. We say the question doesn't arise for answering in these proceedings for two simple reasons.

PN1247

The first is that the classification structure answers the question about what the employees perform and whether or not they are eligible to be our members. And, in any case, the Act does not require every person employed under an agreement to which a union is party to be a member or eligible to be a member of that union. In fact, all section 170LJ(1) requires is that an employee is a member or eligible to be a member, and that is the proper approach that your Honour ought adopt to the construction of the agreement.

PN1248

Your Honour, we seek to bring these proceedings as an agent of the employees. By the terms of section 42(7) an employee is entitled to be represented in this place by an officer of an organisation of which he or she is a member and, where that - I am sorry, where that organisation is entitled to represent the industrial interests of that person, we say it is clear on the facts and the description of the work Mr McGuckin performs that he falls into that category. Accordingly, he is entitled to be represented by his union in this place as a right, therefore resolving the agency question we say.

PN1249

The second issue is whether or not he is able to bring these proceedings. By the terms of section 33 of the Act, a person who is a party to an industrial instrument is entitled to request that the Commission exercise a power or function. The power or function we seek to exercise is the powers your Honour has under section 170LW. Now, we understand there is a preliminary question; that is, we have to establish that Mr McGuckin and the other employees are bound by the agreement. But in the event that they are, they are entitled to appear in this place and ask that the Commission exercise its powers.

PN1250

So we concede that the preliminary point of whether or not these persons are employees of GWF needs to be resolved in our favour. However, in the event that it does, it is clear on the terms of the Act that the employees, Mr McGuckin in particular about whom your Honour has direct evidence, is entitled to seek that the Commission exercise the powers that it has. Your Honour, we seek a determination which is in reasonably broad terms, and that determination is set out at paragraph 7 of our written submission. We seek a determination that the terms of the enterprise bargaining agreement - that is all the terms - apply to the employment of the employees. At the moment, your Honour, we are in dispute about every single term of the agreement.

PN1251

There is no concession by the employer that one single provision of the agreement has application to the employees, or how those provisions apply. More particularly, your Honour is aware of the precise factual situation we are in which is that the business is closing and there is a live question between the employees, GWF and the union about the application of the redundancy appendix to those employees in the event of redundancy which has been announced - sorry, in the event of the closure of the business which has been announced. There is a live point about whether or not that is redundancies.

PN1252

Now, we say that the form of the termination sought would settle the dispute that is before the Commission. We also say that such a determination about if and how the agreement applies - and it is both, your Honour, it is not simply if the agreement applies but how it applies to the employees - is consistent with the approach of this Commission in relation to other matters. We say that the mere fact that this dispute extends beyond the scope of a mere one or two clauses doesn't prevent it from being a dispute over the application of the agreement within the meaning of 170LW. It is not the case, we say, based on the authorities that if the dispute is big enough and is in about the whole agreement, that it doesn't fall within the realm of being a dispute about the operation of the agreement as a whole.

PN1253

And your Honour will note there that in relation to the termination we seek, we have specifically identified the redundancy agreement which forms part of the EBA, and there is an appendix as one of the items over which we are in dispute about. Your Honour will recall that that was the genesis of the disputes that have been before you about what will be the entitlements of these employees if and when a termination occurs.

PN1254

In relation to jurisdiction, your Honour, we say that this is a dispute as to the proper application of the agreement, and it will require - which is a proper exercise of your powers - your Honour to form a view about which of two or possibly more competing constructions of the agreement are correct, and which of various competing versions are the facts and how they apply to whether or not a contract of employment exists, and how that relates to the agreement; which of those constructions are correct. Those are quite proper exercises of your powers and it is clear on the authorities that that is a necessary first step for you in order to be able to, first of all, form a view as to whether or not you have jurisdiction and, secondly, as to how you should exercise your powers of arbitration.

PN1255

We say that you have jurisdiction over the matter as a result of the combined effect of the disputes procedure of the agreement, which is clause 42, and the operation of section 170LW and we say that for the following reasons. The first is that it is a dispute or claim as to the wages and conditions of employees. It is also a dispute about the relationship between the employer - or between an employer in its capacity as an employer, and employees in their capacity as employees.

PN1256

It is also a dispute over the application of the agreement. And so all of those three legs which have been well established as being requirements about how a dispute can be characterised before it attracts the jurisdiction of this Commission under 170LW we say have been met, on the facts that are before you. The disputes procedure, your Honour, provides a mechanism for resolving a very wide range of disputes. It is not one of those clauses which is in limited terms. It applies and is expressed to apply to:

PN1257

...any dispute or claim (whether any such dispute or claim arises out of the operation of the agreement or not) as to the wages or conditions of employment of any employee and/or as to any other industrial matter pertaining to the relations of the employer with employees, shall be settled in the under-mentioned manner.

PN1258

So, your Honour, the disputes procedure has wide scope. So we say if we are able to establish to your satisfaction that there is an employment relationship between GWF and these employees that the matters which we bring before you are squarely within the province of the disputes procedure. We also say that it is clearly established with reference to paragraph (g) of the disputes procedure that your Honour has arbitral powers, subject to certain pre-existing requirements about the following of the disputes procedure. So your Honour has powers that were agreed to by GWF. GWF has agreed to submit all disputes which can be characterised in accordance with the first paragraph of clause 42 to this Commission for arbitration.

PN1259

Now, it is put against us, your Honour, that in relation to clause 42 that the - your Honour, I apologise for the error. It is not clause 42, it is clause 26. I apologise. It is put against us, your Honour, that clause 26 has not been followed such that your Honour's powers haven't been enlivened because the step in the process set out at paragraph (d) has not been followed and specifically, your Honour, that says:

PN1260

If the matter remains unresolved, then it shall be referred to the Human Resources Department. If it is still not resolved to the satisfaction of the individual concerned, then it may be referred to the union office, who will discuss it with management.

PN1261

It is put against us that, because there has been no reference to the TWU union office, that a necessary precondition for the exercise of your powers has not been met. About that we simply say this, your Honour. It clearly indicates that the step of referral to the Transport Workers Union is not a necessary precondition. It is an optional step. It does say "may be referred" so it is not necessary for any dispute notified under this procedure to have been dealt with by the Transport Workers Union office prior to it coming to this Commission.

PN1262

In any case, your Honour, we would suggest that to read the clause in that manner would offend 170LW which states that a dispute procedure or the purpose of the disputes procedure is to settle disputes between the employees and the employer, not the union and the employees. And, secondly, a disputes procedure which limited access to employees on the basis of union membership would arguably be a matter that would attract the attention of part XA and may, in fact, be a matter under which the Commission may be obligated to refuse to certify an agreement, or at least accept undertakings about the manner in which that disputes procedure would be implemented.

PN1263

So we say there is no barrier contained in the early steps of the disputes procedure to your Honour exercising the arbitral functions awarded to you by the agreement and the Act. We say it is clear on its face that clause 26 can be accessed by the employer in the event that it feels it is in dispute with the employees, by an employee, or by the respondent organisation on behalf of those employees.

PN1264

In this case, your Honour, we act for an employee, or a person we say is an employee and, pursuant to the terms of the agreement - particularly the initial paragraphs in paragraph (a) - it is clear that an employee has a right to raise a grievance or a dispute and follow the terms of that procedure through to its logical conclusion which is the exercise of arbitral function. I might note for the record, your Honour, that the Commission as currently constituted conducted fairly exhaustive conciliation proceedings in relation to these matters and can be reasonably satisfied that there is no prospect of reaching agreement by a conciliated outcome.

PN1265

Your Honour, we made some observations about the proper approach to section 170LW and, in doing so, we make reference at paragraph 18 of our written submission to a decision of Senior Deputy President Hancock, as he then was, in relation to section 170MH of the former Act. This is a decision in Public Transport Corporation v Rail, Tram and Bus Union which has received some ongoing reference in decisions pursuant to the current provision of the Act, and we take a number of propositions from his Honour's decision.

PN1266

The first is that your Honour's arbitral function is constrained by the terms of the agreement; that is, what does the agreement actually provide your powers to be? And as we have already said, we say they are broad and encompass the dispute which is before you. Secondly, his Honour took the view that the Commission ought give a broad interpretation to dispute settling procedures and not unreasonably decide that it did not have jurisdiction over matters for technical or other reasons; that is, if it is clear on the intention of the parties that these sorts of disputes were intended to be caught by the disputes procedure, the Commission should find that way.

PN1267

His Honour also, and this is consistent with decisions of the courts, contended that the Commission selecting between competing contentions about meaning and application, while it wouldn't be part of the Commission's normal arbitral function under the award making power, is nevertheless not an exercise of judicial function and, therefore, within your jurisdiction to do. He further said that where there are competing contentions within a disputes procedure, the selection between those contentions has the proper characteristics of an arbitration in line with the authorities provided for by the High Court.

PN1268

We further contend, your Honour, that regardless of any limitation your Honour might find exists by the terms of section 170LW, the parties have agreed - and by parties I mean the employees, GWF and the Transport Workers Union - have agreed to submit a broader range of disputes than are encompassed by 170LW for private arbitration by this Commission. And we say so much is clear by the initial paragraph of the disputes procedure which I read out which characterised the sorts of disputes which can come before the Commission under that provision.

PN1269

The High Court in Gordonstone endorsed parties acting that way, and the Commission exercising powers pursuant to those sorts of procedures. Whether or not those matters go beyond the powers which the Parliament had seen fit to award the Commission, that is something the parties have voluntarily agreed to give the Commission and it is not a - or having volunteered that, it is not open to one or other of the parties to withdraw that during the term of an agreement. Now, there is wide authority for the Commission to validly conduct arbitrations on this basis and your Honour, we say, can proceed on solid ground that your powers have been enabled by the agreement of the parties to clause 26 of the agreement.

PN1270

Now, your Honour, it is true I think that many of the issues we agitate here may also be capable of agitation in other places in a court of competent jurisdiction. That is true we suggest of a range of matters which come before this Commission and it is, we say, clearly established that the fact that there may be an alternative way of agitating these matters is not sufficient to establish that it ought not proceed in this place or that the Commission does not have jurisdiction.

PN1271

The authority for that proposition, your Honour, is re Ranger which we say is authority for the proposition that matters that could also have been made - I am sorry, your Honour, re Ranger is authority for the proposition that the making of a determination by the Commission about matters that could also have been made by a court of competent jurisdiction does not ipso facto mean that the Commission has usurped judicial power. It also doesn't mean that the - so it doesn't mean the Commission is beyond its jurisdiction in exercising that power, and it is also not a reason for the Commission not to exercise its powers. A party who comes before this Commission seeking that the Commission validly exercise its function is entitled to have the Commission exercise that function.

PN1272

We further would submit that the processing of a dispute over the application of the agreement is consistent with the objects of the Act which provide for agreement making in this Commission and for the parties to observe that agreement, and specifically provides for the Commission to be given a role in settling disputes about those agreements. The Act also, of course, your Honour, provides that the parties are the ones that determine what is the best form of agreement for them, including any disputes mechanism which they choose to agree to.

[10.30am]

PN1273

We also say that any question about the enforceability or otherwise of any determination your Honour might make is not a matter that should go to whether or not the determination is made in the first place. That is a matter which Senior Deputy President Hancock dealt with. It is also a matter that your Honour dealt with in Re Graincorp where it was put to you that you ought not make a determination under a disputes procedure because one party indicated it was unwilling to accept your determination on grounds of enforceability. In that case your Honour chose to, and quite properly, ignore that submission as questions of enforceability were for another place.

PN1274

Your Honour, in relation to what is a dispute over the application of an agreement, we make reference to the well-known case, Cooperative Bulk Handling. And we say that is instructive because it was decided in relation to that matter that for there to be a dispute over the application of an agreement or award there needed to be a relationship between a local dispute and the operation of the agreement or award itself. And we say in relation to the facts that are before you there is a very clear, local dispute with a very clear connection to the operation of the agreement.

PN1275

This Commission has further held that for there to be a local dispute it must be possible to identify both the employer concerned and the employees who are concerned. We say that leg has also been met in relation to the matter that is before you. The employer is identifiable and the employees and we have an agreed list, or an uncontested list of the 12 employees to whom the application goes. And, your Honour, the effect of the determination that we seek would be that GWF would be obligated to observe the terms of the agreement in relation to the employment of the 12 employees.

PN1276

In the particular circumstances that are before you, your Honour is aware that the employees are paid the wage rates and at least some other conditions that are contained under the agreement. The effect of the determination would be to extend those entitlements to other provisions of the agreement including specifically the redundancy agreement. If I can take your Honour very briefly to the terms of that redundancy agreement and that is an attachment to the GWF EBA and forms part of the agreement itself and it is contained on page 17 of my copy, your Honour. It starts on page 17.

PN1277

THE DEPUTY PRESIDENT: Yes, I have it thanks, Mr Lyons.

PN1278

MR LYONS: It is expressed in the first clause, Application to Apply to All Employees. It doesn't have the, what I might call the traditional limitation of a redundancy provision, your Honour, that it applies to permanent or full-time and part-time employees, it is expressed as applying to all employees. We say that means whether casual, full-time, part-time. Now, your Honour, the application clause suffers from what we say is the same defect as clause 2 of the substantive agreement in that it does appear on its face to be narrower than the classifications. We make the same submission, your Honour, in relation to that.

PN1279

So on the facts that are before your Honour there is a dispute about whether or not the redundancy agreement applies to the employees in the event of termination. And, as your Honour is aware, termination is an imminent possibility. If we can take your Honour to what we seek you to draw from the evidence that is before you in relation to this matter. For relevant purposes, the employer has - should be careful the way I say that, your Honour. George Weston Foods has operated this specific warehousing operation of these products at three locations since 1997, at Abbotsford, Somerton and Tottenham.

PN1280

The employees in question, and this is set out in the signed surveys which they returned, have been engaged at some or all of those locations depending on the periods of time and their lengths of service. There are some persons employed directly by GWF which they conceded they are employees who perform work within the scope of the agreement and work side by side with the 12 employees. However, a majority of the persons who perform - we say perform the work covered by the agreement at the Tottenham site are alleged to be agency employees.

PN1281

Over the course of their employment with GWF the employees have - and again this depends on how long they have been with the operation, your Honour, but had moved between agencies. That is, GWF has changed its relationship with employers and the evidence is, your Honour, that they have gone from having regional or divisional based contracts to a national contract with the Ready Group and each time that the agency has changed, that is, GWFs relationship with a third party has changed, the employees have moved between those agencies.

PN1282

There is also evidence, your Honour, that that happened at the direction or suggestion of GWF, that is, that the employees were put in a situation, your Honour, where, if they wanted to continue working for GWF or at the GWF site, they were required to go and sign up with the new agency. Your Honour, that is what happened when Ready came on the scene and it is Mr McGuckin's evidence that that is what had happened when previously there had been changes between agencies.

PN1283

Your Honour, the surveys filled out by the employees also indicate that the employees have, until very recently when there has been a downturn in business associated with changes to the business arrangements, worked regular hours and they have generally worked on a full-time basis or equivalent. These employees have worked essentially full-time, in our submission, based on the evidence that is before you. It has also been established that the employees are paid the wages and casual loading allowances, overtime rates, public holiday penalties which are set out in the agreement.

PN1284

With the evidence, you will recall, of Ready that the rates that they pay people were set in consultation with George Weston Foods by reference to the agreement. Specifically, by reference to discussions with Mr Timmins and Ms Knight from the Corporate HR Department. So in relation to what they are paid they are paid the GWF rates. Moreover, these wages and other benefits have been adjusted from time to time, both before and subsequent to the engagement of Ready, by virtue of changes in the arrangements which GWF have set, that is, when a new agreement has been made or when a pay increase has been awarded pursuant to the terms of that agreement.

PN1285

We further say, your Honour, that the evidence establishes that the employees - I am sorry, I withdraw that. Part of the reason, your Honour, that I opened my remarks by suggesting that the version of the arrangements that is put against the union is a sham is on this basis. Prior to September 2003 there was one way of doing business at the Tottenham site. Subsequent to the NUW and the employees beginning to agitate these issues a whole different set of arrangements were put in place about the supervision, allocation of work and other matters in respect of the employees.

PN1286

I will put it to you, your Honour, that that was an attempt to unpick an arrangement which had been in place for nearly seven years. It was an attempt to try and hide the fact that these persons were properly employees of GWF. Essentially, your Honour, they figured out that someone was onto them, the jig was up, and they took steps necessary to try and essentially dress it up so that these people really did work for Ready Workforce. All of the witnesses, your Honour, indicated that there was a change in policy and approach and operating procedures in relation to how the employees were handled from September 2003 on.

PN1287

Your Honour is aware that that dovetails exactly with when the matters were, or started to be agitated by the NUW and the employers. So we say that in determining the question of whether or not there is an employment relationship between GWF and the 12 employees the conduct and the operating procedures which existed prior to September 2003 are used to establish the matrix of facts that exist, not those which were put in place to, in our submission, hide the existence of an employment relationship once the matter commenced to be agitated both industrially and in this Commission.

PN1288

Your Honour, the arrangements before September 2003 were characterised by a number of factors which indicate, in our submission, that there was a contract of employment between the employees and GWF. I have already made a submission to you about the manner in which wages and conditions of employment were set. There is also evidence before your Honour about how hours were allocated, that is, that the hours were allocated either directly by GWF or that the employees were simply required to attend for work each day and were told if they were not required, that is, they were on an ongoing employment arrangement. They simply turned up and commenced work each day at a standard time.

PN1289

It is also common ground, your Honour, that the employees were supervised, directed and controlled by officers of GWF and that prior to September 2003, both with Ready and the pre-existing agencies, there was virtually no contact other than for payroll purposes with the third party agency. There is some evidence, albeit slightly contested, that there was at least some role in a disciplinary and counselling sense by officers of GWF towards employees. We also heard evidence, your Honour, that the employees were required to notify GWF, not the third party, of any absence which they were going to have, that is, if they were going to be sick.

PN1290

We also have evidence that the employees, in the event that they required some time off, discussed and notified GWF in relation to that time off. Mr Timmins objected to the term "negotiate" but it is clear on the evidence, your Honour, that if the employee wanted to come back to work he needed to have arranged with GWF in advance about the fact that they were going to be absent. All of those things, your Honour, go to our characterisation of the relationship with the third party agency which is that it was a payroll provider.

PN1291

THE DEPUTY PRESIDENT: Can I just ask you a question on that, Mr Lyons, because there are, as you know, a multiplicity of arrangements in all sorts of industries where labour hire is provided to organisations to enable them to carry out whatever functions they have to carry out. And where many of what would traditionally have been seen to be the province of the employer in terms of directions to employees are in fact delegated to that organisation that contracts to receive that labour. What is it that differentiates GWF from any of those multiplicity of arrangements that might exist in any number of industries? I mean, you have raised a number of points.

PN1292

Which of those points would you say differentiates this circumstance from labour hire generally and the way that it works generally? I don't think it is unique that we have a set of circumstances where an organisation accepts employees from a third party, a labour hire organisation and then proceeds to direct those employees to carry out certain tasks.

PN1293

MR LYONS: No, your Honour, we concede that and in fact I think we can say that it would be the usual way in which those arrangements would occur in a practical sense. It is necessary, however, in this case for - I am sorry, I withdraw that. We don't say, your Honour, that every person sent by an agency to any third party employer automatically becomes an employee of the third party. It requires the Commission to consider the specific matrix of facts that we have.

PN1294

A couple of things which specifically go to this question are the length and regularity of the service that is involved. The fact that the employees have been, in most cases, through multiple agencies. The fact that the employees have worked at multiple sites on a regular basis and the degree of control that is exercised by GWF in relation to the conduct of work. We accept that it would be normal that an agency employee would work at the direction of the leading hand or supervisor at whatever site he or she is sent to. That would be a normal labour hire arrangement.

PN1295

However, in most labour hire arrangements none of the other matters which I have just taken you to are actually present, or most others, they would not be present. So the reason this relationship is different is because there has been a consistent and ongoing relationship with GWF and from time to time the other relationship with the labour force provider, the third party with whom GWF has a contract, has changed and the people have just moved from one to one. And that is why we so properly construe it, it is really more like a payroll arrangement. And that is what differentiates these arrangements from common or garden variety labour hire arrangements.

PN1296

THE DEPUTY PRESIDENT: Yes, thank you, Mr Lyons.

PN1297

MR LYONS: I am sorry, your Honour. The other issue which goes to this is the employees had a pre-existing relationship with GWF before the involvement of Ready. So these people already were at GWF, in some cases for very extended periods of time, and already had an ongoing relationship with GWF. That is not - - -

PN1298

THE DEPUTY PRESIDENT: Albeit through another labour hire agency.

PN1299

MR LYONS: No, well, they had - well, through an agency but they had their own relationship with GWF on the basis that they were continuing to work there. Now, whether or not that is a contract is a live question, your Honour, and one of the matters that we need to go to but the employees were there when Ready got there. The normal arrangement for a labour hire agency, and what differentiates this case, is that the labour hire agency comes in and brings the employees with it. The employees are new to the business based on the contractual arrangement between the labour hire provider and the host employer and that is, in our submission, a very significant factor in relation to the matter that is before you. Now, in relation to the changes that occurred - - -

PN1300

THE DEPUTY PRESIDENT: I am sorry, Mr Lyons, on that, just refreshing my memory, wasn't there some - there was a previous labour hire arrangement. Presumably, there was a termination of employment with that labour hire company and there was certainly, I recall on the evidence, a set of arrangements put into place to employ the individuals who had previously been working at GWF by Ready Workforce?

PN1301

MR LYONS: Well, your Honour, to my knowledge there is no evidence about what any termination that occurred by - - -

PN1302

THE DEPUTY PRESIDENT: No, I said presumably there was, I am not quite sure - - -

PN1303

MR LYONS: I think you can imply one. I think the employees don't work for them any more so - - -

PN1304

THE DEPUTY PRESIDENT: Yes. So there was in fact if not in process.

PN1305

MR LYONS: The evidence before you is that what occurred was that GWF entered a contractual relationship with Ready Group on a national basis. That filtered down to the site and the employees were invited to sign on with Ready Workforce. Ready Workforce then had a process where they assessed those people. But it was clear to the employees on the facts that to keep their job they had to sign with Ready Workforce.

PN1306

THE DEPUTY PRESIDENT: Yes.

PN1307

MR LYONS: And that was Mr McGuckin's characterisation of it and I think Mr Timmins conceded the same thing, that if you weren't prepared to go and work for Ready Workforce you weren't going to be working there any more. You Honour, the last matter, I think, which differentiates these matters from traditional labour hire arrangements is the almost complete absence of contact between the employees and the agencies prior to September 2003.

PN1308

The evidence of the contact, such as it is, is that an officer of the company would collect the pay sheets once a week and if she walked past people in the warehouse she would say hello to them. Now, despite some valiant attempts to raise that to the level of ongoing contact it amounts to what it was which was a clerical exercise that the pay sheets were hand collected. Moreover, it was conceded that once there was a change to the payroll and that clerical exercise was no longer needed the weekly visit stopped. So that is another part of the matrix of facts which your Honour should go to. There simply was no contact. People got money deposited in their bank account once a week.

PN1309

Now, your Honour, we say that a contract of employment exists between GWF and the 12 employees. And we say that your Honour can solidly find that based on the facts that are before you. Now, it is true that there is no written contract before you which indicates the intention of the parties to make a contract, however, it is well-established and I will take your Honour to a couple of authorities in a moment that it is perfectly proper to imply the existence of a contract if the conduct of the parties clearly indicates that that is what they intended to do.

PN1310

We say that the ongoing relationship between these employees and GWF at multiple locations and over extended periods indicates that there was an intention there by both parties to have work performed by the individual and consideration in reply, albeit that that consideration flows through a third party. The fact that the consideration to the employee in the contract flows through a third party, we say, is no barrier to your Honour finding that a contract exists.

PN1311

The contract that exists is evidenced by the conduct of the employees we say. All those matters which I have taken your Honour to about length of time, period of engagement, supervision, transfer between different third party payroll providers, is all evidence of conduct which indicates the parties thought they had a contract. The employees, on Mr McGuckin's evidence, certainly thought they did and - - -

PN1312

THE DEPUTY PRESIDENT: Well, again, just interrupting you there. Is there not also evidence that suggests that there were some discussions over a period of time between the employees concerned and GWF about the possibility at some point in time of GWF becoming the employer?

PN1313

MR LYONS: No, your Honour, of permanent employment. We say there is a fairly substantial difference. Employees were engaged as casuals. The discussion was around gaining permanent employment with all that flows from that - the security, paid leave, public holiday, sick pay and all the rest of it. At the moment the persons are all engaged as hourly casual employees and obviously, therefore, are not paid when they don't attend for work. So we say that evidence was about getting made permanent, not being made an employee of GWF.

PN1314

THE DEPUTY PRESIDENT: Yes, thank you.

PN1315

MR LYONS: So we say all the requirements for the founding of a contract of employment are there. There is an intention that can be implied to create legal relations. There is consideration in the form of a performance of work and the payment of wages via a third party and your Honour can safely proceed on those grounds. Now, in our written submission we deal with a number of decisions of both the High Court and the Federal Court in relation to indicia of the existence of an employment relationship. And we note that most of those concern - or the matters before the courts in those cases were whether or not it was a contract for service or a contract for services. Nevertheless, those authorities, we say, are relevant, your Honour, because - - -

PN1316

THE DEPUTY PRESIDENT: A contract for service or a contract of service, I think, is what you meant, is it not, Mr Lyons?

PN1317

MR LYONS: Contract of service and a - - -

PN1318

THE DEPUTY PRESIDENT: I think you just said, "a contract for service or a contract for services", plural. I think what you meant was a contract of service versus a contract for service.

PN1319

MR LYONS: Yes, you are right, your Honour, yes. Nevertheless, the courts have held that those indicia are relevant to answering the question, is there an employment relationship? And as a result those matters are relevant to these proceedings. I referred, in opening, your Honour, to a decision of the Federal Court that was handed down subsequent to the hearing of this matter and if I can provide your Honour with a copy.

PN1320

Your Honour, in this matter Damevski v Giudice, a decision of the Full Court of the Federal Court on remission from the High Court. This is a very recent decision considering whether or not in relation to an unfair dismissal proceedings the Commissioner at first instance and the Full Bench was right to dismiss an application because of the absence of an employment relationship. In particular, the judgments of Marshall and Merkel JJ go through, in some considerable depth, to the test to be used about whether or not an employment relationship exists.

PN1321

The case itself, your Honour, concerned a cleaner who was alleged to be employed under an independent contractor arrangement. The court held that he was actually an employee of the host employer and that a contract of employment existed. And we draw your Honour's attention to a couple of the findings in relation to that which bear on this case. The first is that the respondents in relation to that matter, both before the Commission and the court, put much stock in the fact that there was a commercial relationship between the host and the labour provider which said that there was no employment relationship going to be created.

PN1322

The court pointed out that the employee, or the independent contractor, was not a party to that agreement and in fact had no knowledge of its terms prior to the commencement of the proceedings. And that such an agreement, and the analogous agreement in this case, your Honour, is the labour hire agreement that exists between GWF and Ready, can have no bearing on whether or not an employment relationship exists between the individual and the host employer. And the court is, in fact, quite critical of the Commission for forming the view that because there was some sort of relationship between the applicant and the third party provider there could be no relationship between the host employer and that individual as well.

PN1323

And the answer to that question required an analysis, a specific analysis of the facts that are before the Commission. And in relation to that matter the court found that there was an employment relationship based on a consideration of the facts and the application of the indicia that I have taken your Honour to and those that are set out in the written submissions at paragraph 42 and following. So we say there is good authority for the proposition that what your Honour is required to do is not to focus on the relationship between GWF and Ready to which none of the people I represent are parties and that none of them had any knowledge of prior to these proceedings and the majority of whom probably still have no knowledge of.

PN1324

The question for your Honour is to examine whether or not there is a relationship between GWF and the employees and if so what is the nature of that relationship? And, secondly, the existence of a relationship between those employees and the third party does not preclude or extinguish the possibility of there being a relationship between GWF and the employees.

[10.56am]

PN1325

Other than what is set out in our written submission, your Honour, the last thing we note in relation to whether GWF is the employer, is that essentially we say the only - prior to September 2003, the only indicia of whether or not there was an employment relationship that existed between the employees and Ready, was that they had their wages paid. That was it. There was no other evidence which suggests that before September 2003, relevant indicia of an existence of an employment contract, were between those two parties. They were all between GWF and the employees. And there is an authority which we take you to there in Brodribb Sawmilling, that says that the mere fact that wages are paid, is not sufficient in and of itself to identify who the employer is.

PN1326

So, your Honour, we draw a direct contrast between the ongoing, direct and close relationship between GWF and the employees, and the remote - we call it insubstantial, and indistinct, relationship between the employees and the third party provider. Your Honour, we have two alternatives to that proposition that GWF is the employer. The first alternative is that there is a joint employment relationship. Your Honour, joint employment, is a phrase, as your Honour is well aware, that exists in United States labour law. It is a creation of statute, in most cases, in relation to the United States law. However, your Honour will also be aware of the Full Bench of this Commission in Morgan v Kittochside, where Munro J and Others made the observation, and I quote:

PN1327

That no substantive barrier should exist to accepting that a joint employment relationship may be found and given effect to for certain purposes under the Act.

PN1328

Now, it wasn't necessary for his Honour and the other members of the bench to determine that question, and that remark is obiter. But it is an indication that his Honour could see no barrier for a joint employment relationship that he found to exist, for certain purposes under the Act. Now, we say certain purposes could include a 170CE application, and can include a 170LW application, for the purposes of employees accessing disputes procedures and the provisions of agreements where their employer decides to deny them the full protection of those agreements.

PN1329

The concept of joint employment, your Honour, arose to combat exactly the sort of arrangement which is presented here before you by the employers. It arose as a public policy solution to employers attempting to contract out of their industrial obligations, their regulatory obligations. And it is an attempt to step behind those and look at what the real relationships are. And it is on that basis that we invite the Commission to take that step as an alternative in relation to these proceedings.

PN1330

This is, of course, your Honour, a reasonably new area of law in relation to the Australia, but there are decisions in various Australian jurisdictions which have established a willingness for tribunals to extend obligations, including, for example, in the case of the New South Wales decision we cite there, unfair dismissal obligations, to host employers, although it is put to the Commission that the real employer is a third party.

PN1331

We respectfully invite your Honour to consider Nguyen v ANT Contract Packers Pty Limited and Fee Services Pty Limited, where the New South Wales Commission gives some good summary of all those sorts of requirements that would establish whether or not joint employment or obligations on host employers exist. And we refer, in particular, your Honour, when you consider the concept of joint employment, the definition that exists on it, under the United States law.

PN1332

We say that joint employment has been held to exist where multiple employers exercise significant control over an employee, and where they, and I quote:

PN1333

... share or co-determine those matters governing essential terms and conditions of employment.

PN1334

Your Honour, that is exactly what has occurred here. In fact, more of - in terms of co-determining terms and conditions of employment, more of the share of those obligations and duties actually falls on GWF than it does on Ready. Ready is simply told what to pay and pay it. All of the other requirements and determination of the way in which the work is performed, when and how it is performed, has always been done by GWF.

PN1335

We summarise at paragraph 51, the requirements - I am sorry, the facts which have been held to be indicative of the existence of joint employment, under United States law, and we say those are relevant and appear in relation to this case. First of all, the host employer determines discipline hiring and firing. That is, who is actually working the premises. That is, there is no ability for Ready to continue to send Mr McGuckin, for example, to the site, in the event that GWF decided they did not wish to continue to engage Mr McGuckin.

PN1336

Secondly, a control by the host employer over the means and detail of the work performed. It has been established on the evidence of McGuckin and Timmins, that that directly occurred by GWF in relation to this case. The employees also used the host employer's tools and equipment such as forklifts, to perform their duties. The assignment of work to the employees directly by the host employer, that is not by reference to the Agency. That is not, Mr Timmins rings Ready and asks for five casuals. The casuals are either effectively on a roster or a contact direct - by GWF.

PN1337

The day to day supervision and allocation of tasks to employees by the host employer, again, that exists in relation to this case. The setting of terms and conditions of employment, including wage levels by the host employer. There is direct evidence that that is what occurred in relation to this case. And the setting of working hours by the host employers.

PN1338

THE DEPUTY PRESIDENT: If I take you back to those again, Mr Lyons, from B to G, wouldn't they be fairly typical of most labour hire arrangements in most organisations?

PN1339

MR LYONS: B to G, your Honour. Well, I think your Honour and I have already had a discussion in relation to B. I think we have dealt with that one. In relation to the others, we say in particular, no, D is not a normal requirement of the - of labour hire arrangements. The normal position is, and if you will recall, this was the evidence of Ready about what their system says is to happen, is that the client contacts Ready and Ready contacts the casual.

PN1340

THE DEPUTY PRESIDENT: Okay. So by D you mean, not the assignment of work from one job to another job, within the space of a shift or a day? You are talking about the assignment of work from the beginning of any shift?

PN1341

MR LYONS: Yes.

PN1342

THE DEPUTY PRESIDENT: Yes.

PN1343

MR LYONS: Yes, your Honour. I think the other meaning of that is probably caught by B. The assignment of workers in, go and pick this order, is caught by B.

PN1344

THE DEPUTY PRESIDENT: Yes.

PN1345

MR LYONS: By assignment of work, I mean, we need you tomorrow. The evidence before you is that it is Ready's normal system that that occurs - there is no direct contact between client and worker. And in this case the ongoing relationship before September was that the reverse of that occurred. Also in relation to the setting of terms and conditions of employment including wage levels, that is not a normal characteristic, your Honour. The normal characteristic would be that the labour hire agency has whatever arrangements it sees fit with its employees.

PN1346

THE DEPUTY PRESIDENT: Well, except to the extent, Mr Lyons, in many of those arrangements, because of the industrial circumstance, there is a requirement on the labour hire company to pay the terms and conditions that exist at the particular place.

PN1347

MR LYONS: Absolutely.

PN1348

THE DEPUTY PRESIDENT: Yes.

PN1349

MR LYONS: And that was the evidence of the managing director of Ready.

PN1350

THE DEPUTY PRESIDENT: Yes.

PN1351

MR LYONS: Which was that in some circumstances, we are - it is easier to pay the award rate. So it is easier to pay the agreement rates. He objected to my characterisation of, you will pay less if you will get away with that. But nevertheless that was the evidence from the senior management of the company about the arrangements they adopt in respect of setting wages. If there is an industrial instrument, and it is likely to cause industrial disputation, it will be paid. If it is not, some other rate, consistent with minimum entitlements, which - what he said - what he conceded was, in Victoria, that is schedule 1A, and in other states, a relevant common rule award would apply.

PN1352

MR FISHER: With respect, your Honour, I don't think that was Mr Cartwright's evidence at all. At times, Mr Cartwright said that it would either be the award that applied. The award might apply to the client. It might apply to Ready Workforce independently of the client. The site agreement, which again might apply to the client. Or the site agreement might apply to Ready Workforce. They have agreements with unions. Some of them compel them to pay site rates. Some of them compel them to pay site rates. Some of them said independent conditions was Mr Cartwright's evidence.

PN1353

And to the contrary, in terms of minimum entitlements, Mr Cartwright's evidence was, that at times they pay the market rate, because it is difficult to attract people who are of certain skill types, and in fact they might have to pay above either the award rate or the site rate, to attract specific skill groups. So I think that was the evidence of Mr Cartwright.

PN1354

THE DEPUTY PRESIDENT: Yes, thanks, Mr Fisher. Go on, Mr Lyons.

PN1355

MR LYONS: Well, your Honour, I don't think much turns on that. The indicia of whether or not there is joint employment is that the host employer has some role in setting the terms and conditions of employment. That is one of the indicia of the existence of joint employment. In relation to this case, what the evidence is of the local management is that the rates were fixed by reference to meetings they held with Mr Timmins and Ms Knight. That is they were set with reference to GWF and GWFs conditions. And matched those conditions.

PN1356

I think all Mr Fisher has established with that is that there are, outside of that, a plethora of arrangements. In this particular case, the wages are set by reference to the GWF standards, not by reference to any other document binding on Ready, or any other arrangements that it has. Your Honour, in relation to those matters in paragraph 51 - I am sorry, before I move on from that, I had dealt with D, the assignment of work. The day to day supervision allocation of tasks, I think again falls in a similar category to B, and your Honour and I have already discussed that issue. F, we have discussed.

PN1357

The setting of working hours by the host employer, again we don't say that is a normal requirement because the - in this case GWF was agreeing on the working hours direct with the employee, without reference to the Agency, which is different to what Ready said its process would be, which is that an employee would be contacted by the consultant he or she reports to, and said, GWF would like you at six o'clock tomorrow morning.

PN1358

Now, your Honour, all of those requirements are set out in the terms and conditions of employment document, which is in evidence before you. So all of those indicia of the existence of dual employment, or joint employment, are actually set out in the document which exists between Ready and the employees, in the terms of employment document. And we say that goes to - straight from Ready, is evidence of the fact that there is good evidence before you, that a relationship can be construed to exist between the three parties.

PN1359

We say it is well established and Munro J referred to this, that the Australian law demonstrates a flexible approach to the existence of an employment contract, and that the courts and tribunals have indicated a willingness to analyse contracts of employment, and I quote:

PN1360

To prevent the regulatory protections of employees being avoided.

PN1361

That is, the courts and tribunals in Australia have traditionally not allowed sham arrangements or arrangements that are specifically designed to avoid regulatory obligations, to have that effect, where that is their intention. And we say that squarely before you is a case which is squarely within that basket. In relation to that matter, your Honour, in Damevski v Giudice, Marshall J warns employers against simply adopting Oddco arrangements as if what the High Court had done was set down a guaranteed road map for avoiding the existence of an employment contract. And that these matters will always turn on the specific facts of the case.

PN1362

And it hadn't been the case that the court had simply laid down a way of avoiding award obligations or the creation of an employment contract. So much is the same here, your Honour. It requires the application of - the tests about whether a contract exists to the relationship, which exists on the ground. And we say, it specifically existed on the ground before September 2003. Our second alternative, your Honour, would involve the making of a determination against Ready Workforce.

PN1363

Your Honour will recall that it was the evidence of Ready that they don't believe they have redundancy obligations to any of these employees regardless of their length of service, because they are on day hire. And if they are offered more work, they can choose whether or not to take that work. And if they are not offered work, they are simply not offered work. And that those obligations don't differ, whether the person has had one shift or 300 shifts.

PN1364

We say that properly interpreted, the terms and conditions of employment agreement, which is in evidence between the individual employees and Ready Workforce, adopts the terms and conditions of the GWF agreement for the period of their employment at Tottenham. And that includes all its terms and conditions. I have already put a submissions to your Honour about the fact that the redundancy agreement catches casual employees, by virtue of its expressing to apply to all employees.

PN1365

The terms and conditions of employment document states, that the parties agree that the remuneration, and your Honour, remuneration, of course, means more than simply wages, it means the total package of what is provided to an employee, is according to and subject to, quote:

PN1366

... all relevant provisions of any appropriate award, site or enterprise agreement.

PN1367

I end the quote. The document further does commit Ready to observe in termination requirements of any such instruments where they are necessary or exist. Now, your Honour, it was conceded in evidence that - and I asked each of the Ready witnesses this, was the agreement under which these proceedings are notified a relevant agreement for the purposes of that provision, and they each agreed that it was and that was the agreement that was applied to people in respect of their wages. So we say there is an agreement between the employees and Ready in respect of their remuneration, their total remuneration, to apply the terms of that agreement.

PN1368

We say that extends to all the provisions of the agreement including, in the event that there is a dispute about those terms of remuneration, the application of the disputes procedure. Now we understand that is a - I don't think something which has been attempted before - - -

PN1369

THE DEPUTY PRESIDENT: No, I don't think it has, Mr Lyons.

PN1370

MR LYONS: However we say - - -

PN1371

THE DEPUTY PRESIDENT: But go ahead.

PN1372

MR LYONS: Sorry?

PN1373

THE DEPUTY PRESIDENT: But go ahead.

PN1374

MR LYONS: Well, very simply, your Honour, we say this. If a company makes an agreement with employees that says:

PN1375

In respect of your remuneration we will observe the site agreement.

PN1376

All the parties agree that the site agreement - there is no dispute about which site agreement it is, for example, we all agree on what the agreement should be. And it says it fixes remuneration total, not just wages, that it is not then up to the employer to pick and choose about which bits of that agreement will then apply.

PN1377

THE DEPUTY PRESIDENT: So essentially what you are saying to me is that - - -

PN1378

MR LYONS: You can't pick the eyes out of it.

PN1379

THE DEPUTY PRESIDENT: - - - if I understand you correctly, that the agreement between Ready Workforce and the employees concerned in effect incorporates the terms of the enterprise agreement into their employment contract. Is that what you are saying?

PN1380

MR LYONS: That is right, your Honour, that is right. That is right. And it does that by virtue of the wording of the employment agreement - sorry, the terms and conditions of employment document which we reproduce at paragraph 56. And it can't be the case, your Honour, that those words are read to mean the provisions of the agreement that the employer from time to time determines it is going to apply to you. The agreement either sets the remuneration with all that goes with that or it doesn't. And we reproduce there at the end of our submissions, your Honour, a proposed determination that would be issued in the event your Honour does not come with us of any of the first two alternative submissions.

PN1381

THE DEPUTY PRESIDENT: Just on that one though, Mr Lyons, I accept your submissions that remuneration goes beyond simply salary, but you are contending that it goes to also including such issues in the enterprise agreement as the disputes procedure.

PN1382

MR LYONS: Well, the agreement as a whole sets people's - the remuneration, your Honour, and if - it is our contention that the contract that exists between the employees and Ready had the clear intention of importing all the terms of the agreement, including machinery provisions, into their contract of employment. So that it wasn't limited to the wages and the overtime rates, for example, and includes relevantly those requirements that the employer has some obligations in respect of severance pay in the event of redundancy.

PN1383

Of course, your Honour, Ready may be in a position to offer acceptable alternative employment, but that would be something that would be the subject of discussion in individual cases. Now, your Honour, I do have in anticipation some matters to address you regarding proper application of the agreement. In the interests of not repeating - doing this in a proper order, I may save those subsequent observations until I hear from my friend, just so I am clear on an understanding of what the objection taken is rather than take some guess at that proposition. Unless your Honour has any questions then we would leave the matter there.

PN1384

THE DEPUTY PRESIDENT: No, thanks, Mr Lyons.

PN1385

MR LYONS: If the Commission pleases.

PN1386

THE DEPUTY PRESIDENT: Mr O'Grady, before you rise I might adjourn for a matter of 15 minutes, some matters to attend to, so I will reconvene at 25 minutes before 12. Thank you.

SHORT ADJOURNMENT [11.21am]

RESUMED [11.40am]

PN1387

THE DEPUTY PRESIDENT: Yes, Mr O'Grady.

PN1388

MR O'GRADY: Yes, thank you, your Honour. Your Honour, I have prepared a supplementary outline of submissions that I intend to deal with that we say are the pertinent parts of the evidence, and also with two authorities that Mr Lyons referred to, namely the Tenix Solutions decision and the Damevski decision. If I could hand a copy of that up to your Honour.

PN1389

THE DEPUTY PRESIDENT: Yes.

PN1390

MR O'GRADY: This is very much a supplementary submission, your Honour. It is not in any way designed to replace the submission that we filed pursuant to your Honour's directions.

PN1391

THE DEPUTY PRESIDENT: Yes, thanks, Mr O'Grady.

PN1392

MR O'GRADY: Your Honour, I have also placed on your associate's desk a bundle of authorities, not all of which I intend to refer to today, but they are referred to in the submissions that we filed; and it is really just for your Honour's convenience and I will take your Honour to those that I believe are important in the course of the submission.

PN1393

THE DEPUTY PRESIDENT: Yes. Thanks, Mr O'Grady.

PN1394

MR O'GRADY: Your Honour, we have very much attempted to respond fully to what, on any view of it, are really quite novel applications in our written submissions and nothing really in the evidence changes what we have said there. In many ways, your Honour, in my submission, the evidence that was adduced before you when we were here last time really establishes the premises that are set out in those written submissions, and I don't want to take up too much time going through that. But if I can perhaps hit on the primary points.

PN1395

And the first point, of course, your Honour, concerns the construction of the application clause of the agreement: and this is dealt with in paragraph 6 of our original written submissions. And the point is really a very simple one, your Honour. We are here today because the NUW as an agent, not as a party principal, purports to represent a number of named individuals. It does so saying that those individuals are entitled to access the dispute resolution procedure set out in the agreement.

PN1396

For it to make good that proposition, your Honour, it has got to establish that those individuals are parties to this agreement; and, indeed, the language used by Mr Lyons in his submission to you this morning was perfectly consistent with that. Now, the parties to this agreement have defined in clear and unequivocal terms who the parties are to be; and there is no dispute about that. And the parties are, on the one hand, George Weston Foods and, on the other hand, the Transport Workers Union and employees of George Weston Foods who are eligible to be members of the Transport Workers Union employed in the classifications or occupations listed in the Transport Workers (Mixed Industries) Award or any successor award.

PN1397

Now, your Honour, there is nothing before you, in my submission, that would enable you to conclude that the individuals who the NUW seeks to represent here today fall within that definition. Mr Lyons has not sought to persuade you that the individuals who are here today - that he seeks to represent today fall within that definition. Rather what he asks your Honour to do is to ignore the parties bound clause in the agreement, to say that somehow it is superseded or overcome by the mere fact that there are classifications set out in the body of the agreement that are capable of applying to people who don't fall within that definition.

PN1398

Your Honour, it is a classic case of the tail wagging the dog. The parties have circumscribed to whom this agreement will apply in the clause headed: Parties bound. To say that there is a - because there is a potential operating of some other clause in the agreement to somebody who doesn't fall within that definition, therefore, that clause can be ignored is, in my respectful submission, just wrong.

PN1399

THE DEPUTY PRESIDENT: Well, Mr O'Grady, if I just take you to that provision in the agreement which is the classifications provision in the agreement and I - - -

PN1400

MR O'GRADY: Yes, your Honour.

PN1401

THE DEPUTY PRESIDENT: Would it not be somewhat of an odd circumstance - and it seems to me to be the case - that the classifications in the agreement, all of the classifications that the agreement seems to allude to, including the entry point, would fall outside of the coverage of the Transport Workers (Mixed Industry) Award, would it not?

PN1402

MR O'GRADY: Well, if there was evidence that that was the case, your Honour, then that might be an odd situation but it doesn't alter the parties bound clause. These are indicative classification descriptions.

PN1403

THE DEPUTY PRESIDENT: Yes.

PN1404

MR O'GRADY: They are meant to broadly describe the sort of things that people might be doing under these various levels. The classification structure in no way seeks to alter to whom the agreement applies. There is no suggestion in the classification clause, your Honour, that clause 13 in any way extends the parties bound as defined in clause 2 of the agreement.

PN1405

The fact that the parties might have included tasks in the classification structure that may or may not fall within the Transport Workers (Mixed Industries) Award - and we haven't looked at that award, we have had no evidence about that award - really is by the by, in my respectful submission, your Honour. It may be that somebody could be engaging in a combination of tasks: some that fall within the definition of the Transport Workers (Mixed Industries) Award and some that don't. And the classification structure is adapted to deal with that scenario. But it doesn't remove the fundamental point, your Honour, regarding who the agreement applies to.

PN1406

And in this context, your Honour, we do point out that this is a case being brought by named individuals. It is not a case being brought by a union as a party principal. So the individuals are saying: I am a party to an agreement with you, George Weston Foods, that enables me to bring you to the Commission and requires you to accept whatever arbitrated outcome the Commission determines is appropriate. In those circumstances, your Honour, in my submission, they must establish that they are parties and, as I have said, your Honour, and I won't repeat myself, the mere fact that there are some tasks that they perform that fall within the classification structure, in my respectful submission, doesn't make good that proposition.

PN1407

Your Honour, the second point we make, of course, is that it is not just the classifications listed in the Transport Workers (Mixed Industry) Award but it is also eligibility to be members of the TWU. These are cumulative preconditions to being a party. And, once again, your Honour, we have no evidence to suggest that these individuals are eligible. It is a matter that I raised at the very outset of this hearing when we were here last time, in effect, asking Mr Lyons to indicate how it is this precondition is addressed and we have still heard nothing about that matter. Mr Lyons, in effect, says, well, you can ignore that and in that regard, in my submission, he is wrong.

PN1408

And when one has regard, of course, your Honour, to the fact that this is an agreement between us and the Transport Workers Union primarily, although extending to employees who are eligible to be members of the Transport Workers Union, that should be seen as a very important prerequisite that has to be met before the agreement can be accessed. Because what Mr Lyons says to your Honour is that we have agreed, we have committed ourselves to a process but one has to look at the terms of the agreement to work out what process we have committed ourselves to.

PN1409

We have committed ourselves to a process to sorting out fights that we have with the Transport Workers Union and people who are eligible to be their members through the mechanisms set out in clause 26. We haven't committed ourselves to a process whereby we will sort out fights that we might have with other organisations or persons who are their members through this mechanism. We may well have other agreements that but not this agreement, and it is this agreement the union seeks to rely upon.

PN1410

Your Honour, the other point that we make in paragraph 6, or that we make in that part of the submission commencing at paragraph 6 deals with the failure to go through the steps set out in clause 26 and, in particular, the steps set out in subclause (d). And this appears, your Honour, on the page where the clause is set out. Your Honour, Mr Lyons, as I understand it, says, well, that is a discretionary step; that parties can avoid it if they want to because the word "may" is there. Your Honour, in my submission, steps A to E should be viewed as sequential steps that the parties may take if they aren't able to resolve the dispute between them at the earliest stage in the process.

PN1411

So the first stage as set out in part A is that the employee will raise the matter with their supervisor with a view to resolving the matter. If it is unresolved, it can then be referred. If it is unresolved, it then goes to a departmental manager. If the matter is unresolved, then it may be referred to the union office to discuss it with management.

PN1412

THE DEPUTY PRESIDENT: Well, how do you account for the difference in terminology then, Mr O'Grady? There is the use of the term "shall" in the first three steps and then there is the use of the word "may" in respect of the involvement of the union.

PN1413

MR O'GRADY: Well, the way we would deal with that, your Honour, is that it simply reflects that as these steps are gone through - sorry, I will rephrase that. It reflects the fact that it doesn't necessarily follow that from step C the matter would go to the union. But it doesn't mean that you can circumvent step D and get to step E. The only way to get to step E is to go through step D, is the way I would put it, your Honour. So it is not obligatory on the parties if the matter is unresolved that it go to the union, but it is a precondition if it is going to come from - come to this Commission it go through step E because step E starts with the terms:

PN1414

If the matter is still not settled...

PN1415

and that must be seen in context as a reference back to step D.

PN1416

THE DEPUTY PRESIDENT: Yes. I am just - I think you have lost me a bit, Mr O'Grady. You are saying on the one hand that it is not obligatory that it goes to the union. However, you then seem to be saying that that step must have been taken prior to it coming to the Commission.

PN1417

MR O'GRADY: Well, yes, your Honour.

PN1418

THE DEPUTY PRESIDENT: Well, you can't have your cake and eat it, too, Mr O'Grady.

PN1419

MR O'GRADY: Well, sorry, the way I put it is this, your Honour. The other steps - if it is not resolved, it must go up the hierarchy.

PN1420

THE DEPUTY PRESIDENT: Yes.

PN1421

MR O'GRADY: But with respect to the step described in part D, it is not obligatory that it goes up the hierarchy. The parties don't need to go the next step of referring it to the union and then ultimately to the Commission, but they can't avoid the next step and jump up two steps.

PN1422

THE DEPUTY PRESIDENT: I think I understand the point you are making, Mr O'Grady. I am not sure I entirely agree with it but I understand it. Yes.

PN1423

MR O'GRADY: Well, that is the way that we deal with it, your Honour. Because there is no option, if you like, of - in step D of referring it to either the union or the Commission or both. We would say - - -

PN1424

THE DEPUTY PRESIDENT: But it is not unusual, Mr O'Grady, for a disputes procedure to contain a step, albeit a sequential step, that is optional. That is not an unusual circumstance in a large number of disputes procedures.

PN1425

MR O'GRADY: I am not saying that it is, your Honour, but what I am putting to you is that the gate, if you like, to step B is via the process set out in step D, and we say that that requires a reference to the union office.

PN1426

THE DEPUTY PRESIDENT: So you are saying that they don't have to do it but, if they want to get to step E, they have to do it.

PN1427

MR O'GRADY: Precisely.

PN1428

THE DEPUTY PRESIDENT: Yes.

PN1429

MR O'GRADY: Yes, your Honour. And the - - -

PN1430

THE DEPUTY PRESIDENT: That also is a novel submission, I put it to you, Mr O'Grady, but anyway - - -

PN1431

MR O'GRADY: Well, your Honour, that is the submission and it is a submission, of course, that we put in the context of an agreement which is between the Transport Workers Union on the one hand, and my client on the other.

PN1432

THE DEPUTY PRESIDENT: Yes.

PN1433

MR O'GRADY: It is a submission that your Honour doesn't have to deal with if you agree with what I have already said to your Honour. And, in my submission, what I have already said to your Honour, notwithstanding I am only up to paragraph 6, presents some significant hurdles to this application.

PN1434

Your Honour, I don't think I really want to say anything more about that part of the submission that doesn't already appear in the written submissions other than to make the point that this is an agreement, as I say, entered into by the Transport Workers Union. The Transport Workers Union was, of course, purporting to represent its members when it entered into this agreement and, as we say at paragraph 15 of the written submission, its ability to do so turns on its eligibility rules.

PN1435

If the Transport Workers Union - if these people aren't eligible to be members of the Transport Workers Union, then there are real questions as to how the Transport Workers Union, purporting to represent them or acting on their behalf, could enter into this agreement with my client. And there is reference there to the Duckworth decision, and I won't read out the relevant passage.

PN1436

On this question, your Honour, the evidence of Mr McGuckin is referred to briefly in the supplementary submissions that I have handed up to your Honour. And you will see there in paragraph 2 and on to paragraph 3 I have set out the relevant part of the transcript. The point made in those paragraphs, your Honour, is that these individuals not only would appear not to be eligible to be members of the Transport Workers Union, but they weren't involved in the process giving rise to the certification of this agreement.

PN1437

Your Honour, it highlights one of the problems that inevitably follow when you take the broad brush approach, and I mean it without any disrespect to Mr Lyons, but when you take the broad brush approach to these agreements and say, well, I reckon I am doing something that falls within a classification covered by that agreement, therefore I am entitled - I am a party to that agreement, I am entitled to enforce its terms vis-a-vis my employment.

PN1438

Now, these individuals weren't involved in the certification process. They weren't shown the agreement. They weren't asked to vote on the agreement. One doesn't know whether the agreement would have been certified, whether a valid majority would have been achieved if they had have been a part of that process. If what Mr Lyons says is right, there are very real concerns about whether this agreement was validly certified in that the process that was followed would not, on its face, have accorded with the requirements in section 170LE and 170LT. And Mr McGuckin's evidence is clear; we weren't a party to it, we weren't shown it, we weren't asked to vote.

PN1439

That is a reason, your Honour, in my submission, for giving due emphasis to the parties bound clause in clause 2, because that enables both the employer and the employees and the organisations involved in the certification process to know who they have got to show the thing to in order to get the votes in order to get the thing certified. If one takes Mr Lyons' approach and says, well, what you can do is you can go to a clause in the agreement or the classification structure and if you arguably fall within that, you can overcome the parties bound clause, then you do raise this hornet's nests of problems regarding the certification process and make it very difficult to apply that process in a practical way on the ground. Your Honour, can I turn to the next point we make which concerns section 170LW and the agreement.

PN1440

THE DEPUTY PRESIDENT: That is in the supplementary submissions, Mr O'Grady.

PN1441

MR O'GRADY: Well, your Honour, I will take you to both if I may concurrently.

PN1442

THE DEPUTY PRESIDENT: Yes.

PN1443

MR O'GRADY: But I am dealing at the moment with the written submission, the first submission.

PN1444

THE DEPUTY PRESIDENT: Yes.

PN1445

MR O'GRADY: And, your Honour, I have set out section 170LW. Section 33, of course, says that:

PN1446

The Commission may perform a function or exercise a power on the application of an organisation or person bound by the agreement.

PN1447

So, once again, it would appear to be an essential precondition to this application that the NUW establish that these people are people bound by the agreement. And then I make the submission, your Honour, which is really perhaps a broad policy submission as much as anything else that there are intrinsic difficulties in an organisation who isn't a party to a certified agreement attempting to establish a presence, if you like, through this mechanism of agency. The Act does confer significant rights on organisations. Within their sphere of coverage they are entitled to represent members, they are entitled to enter into certified agreements and make awards.

PN1448

Here we have one union attempting to take over or at least exercise rights established by an agreement established by another organisation and, in my submission, your Honour, that is inconsistent with the general theme of the Act. It does pose some ongoing problems with respect to the mechanisms in the Act and how they would work in practice should this type of application receive the endorsement of the Commission.

PN1449

Your Honour, in paragraph 23 and 24 we, once again, deal with the requirement that the employees be bound by the agreement, and in paragraph 24 the submission is made that it is a preliminary issue for the Commission to ascertain the character of the dispute before it in order to determine whether it can be properly described as a dispute over the application of the agreement, and the authorities of the MUA v Australian Plant Services and the SDA case are set out there, your Honour. Your Honour, they run counter to something that Mr Lyons said in his submissions to you this morning that, because this is a - because of the private arbitration case, you are not confined by the limits in section 170LW.

PN1450

Your Honour, in my respectful submission, that is an incorrect characterisation of what the private arbitration case says. The decision in MUA v Australian Plant Services and SDA v Big W Discount Department Stores were both made after the High Court handed down its decision in the Kestrel private arbitration case. They, in my respectful submission, correctly state the law as to the approach the Commission should take with respect to its function under section 170LW.

PN1451

In paragraph 26 we make the submission, your Honour, that notwithstanding Mr Lyons' attempt to dress it up, this is a dispute over whether the agreement applies at all. This is not a dispute about how a particular term should apply in certain circumstances but rather it is the fundamental question of: does this agreement have any application to these employees at all. That is the jurisdictional question that is posed by this application and, when one has regard to the determination sought by the NUW, that is the only issue you are being asked to determine.

PN1452

You are not being asked to determine whether Mr McGuckin, given the fact that he has been there for a number of different agencies or had been given different duties over the time he has been at the site, is entitled to four weeks severance or six weeks severance as it may apply. You are being asked to determine whether or not this agreement applies to Mr McGuckin's employment per se.

[12noon]

PN1453

And that issue, your Honour, was dealt with in a vote by the Full Bench in the Automated Meter Reading Services, which we have set out in the submission, a decision of Munro J, SDP Kaufman and Commissioner Cribb, in which SDP Kaufman dissented, and also by the recent decision that was referred to by Mr Lyons and which is referred to in the supplementary decision, namely the Tenix Solutions case. Both the Automated Meter Reading Services case and the Tenix Solutions case concern whether or not the agreement applied at all.

PN1454

In both cases the Commission held that this issue was a precondition to the exercise of the Commission's jurisdiction. Munro J and Commissioner Cribb felt that it was open to the Commission as part of ascertaining whether or not it had jurisdiction to form a preliminary view as to whether or not the agreement applied at all, and if it did, then it could go on to exercise these powers under section 170LW. SDP Kaufman in his dissenting decision, and I put in quotes in paragraph 28 the relevant passages, felt that the Commission could not even go that far in that this was a jurisdictional question, it was an exercise of judicial power, and in the circumstances it was not something that the Commission could determine under a section 170LW application.

PN1455

In my submission, there is no fundamental difference to the underlying approach of the majority and the minority in the Automated Meter Readers' decision in that both acknowledge that a dispute that is confined to the question of whether or not an agreement applies at all is not a dispute over the application of an agreement for the purposes of section 170LW. The only difference is whether or not this issue can be looked at in a preliminary way. The recent decision in Tenix Solutions deals with both approaches and is consistent with what I have just said to your Honour about there not being any inconsistency between the two approaches.

PN1456

I have handed a copy of that up in the bundle that I provided to your Honour, but it may be just as convenient to refer to the quotes that I have set out in paragraph 4 of the supplementary decision, supplementary submission. Your Honour, I should note that Mr Friend, who appeared for the applicant in this case put a submission that was very similar to that which Mr Lyons put to you an hour or so ago, namely, what we are dealing with here is a dispute over how these particular terms apply to individuals. This is really just a preliminary issue that - the application of the agreement per se is just preliminary issue you have got to determine.

PN1457

The Full Bench looked at the notification that the union had filed with respect to the dispute, and this is set out under paragraph 39, and said in paragraph 40 that:

PN1458

The characterisation of the dispute, one advanced by the CPSU, leaves little doubt about the real nature of the dispute. It was a dispute about the binding effect of the agreement on Tenix with respect to its employees. The suggestion that the real dispute concerned the application of a number of specific clauses appears to us to be something that the CPSU has hit upon in its quest for a jurisdictional talisman, to use the words of Mason CJ, with a view to sustaining the exercise of jurisdiction in this case.

PN1459

Now, if one takes that passage, your Honour, and has a look at the submissions filed by the NUW and the determination as it appears in paragraph 7 of those submissions, the point is even stronger. When one has - the determination sought by the NUW in paragraph 7 of its submissions is that George Weston Foods trading as Biscuit and Cake Division Abbotsford and Tottenham Enterprise Agreement applies to the employment of the employees listed in attachment A to this determination, and that George Weston Foods as the employer of the employees is bound to observe and apply all the terms and conditions of that agreement, including the redundancy agreement in respect of those employees.

PN1460

Now, if the submission or the characterisation of the dispute that is set out in the Tenix case was held to be a characterisation that really is one about whether the agreement applies, the point is even clearer, in my respectful submission, when one has regard to the determination sought by the NUW here. And I say that notwithstanding Mr Lyons's attempts to find a jurisdiction talisman to overcome the very clear authority of the Tenix case.

PN1461

Your Honour will see that in paragraph 41 the Full Bench felt that Commissioner Simmonds correctly identified the matter in dispute, namely whether Tenix was bound by the agreement as a successor to the business part or business office of the Police Commissioner, and then they go on to reject the proposition that such a dispute is a dispute over the application of an agreement, and they do so in these terms:

PN1462

Is such a dispute a dispute over the application of the agreement? In our view, it cannot be. An agreement between the parties is an essential precondition to the invocation of the dispute settlement clause. Where, as in this case, the real issue in dispute is whether there is a binding agreement by operation of section 170MB(2), that issue cannot be resolved by the application of the dispute settlement clause.

PN1463

Your Honour, I have set out the other relevant passages of that decision that we rely upon, but I won't read them on to the transcript. As I say in paragraph 5 of the supplementary submission, your Honour, this is a very recent decision of a Full Bench of this Commission. It is clearly right on point, and in my submission it would follow, and accordingly the application should be dismissed for want of jurisdiction.

PN1464

The reference to Health Minders, as your Honour will be aware, given that you were the member of the Commission at first instance who was involved in that case concerns the importance of preserving the doctrine of precedent in Commission proceedings and the necessity for these approaches, for the approach of the Commission to be consistent when confronted with similar applications. Your Honour, on one view of it that is really the end of the matter, and I should sit down. But - - -

PN1465

THE DEPUTY PRESIDENT: Well, that option is available to you.

PN1466

MR O'GRADY: Well, I am tempted, your Honour, but I suspect that given that a number of other issues have been raised I should at least briefly address them. I don't want to take up too much time because in my submission that point really is conclusive to this application. Your Honour, you will see in paragraph 33 of the original written submission we have set out the relevant passages in the private arbitration case. In my submission they are consistent with what was said in MUA v Australian Plant Services and are consistent with the approach that I have already put to your Honour.

PN1467

Once again, it does come back to this issue of the parties. If my client is said to have surrendered its rights or at least to have consented to this Commission's jurisdiction it comes back to in what circumstances has it made that concession, to whom has it made that concession? Can somebody simply knock on the door and say, well, I want to exercise the right to come into the Commission? Clearly that answer, that question has got to be answered by reference to the parties bound clause in the certified agreement.

PN1468

Your Honour, in paragraph 37 we deal with the question of - or I deal with the question of employment, and the essence of these submissions, your Honour, is that in Australian law it is still the case that for there to be an employment contract there must be a contract. It is not remarkable. But whatever may be said about the situation that pertains in the United States, the situation in Australia is that before we can be said to be the employer of the particular employees there must be a contract.

PN1469

Now, the evidence of course, your Honour, is all one way. The evidence is that as far as Ready Workforce was concerned, as far as George Weston Foods was concerned, as far as the employees were concerned, the only contract of employment that was entered into was a contract between the employees and Ready Workforce. And not only that, your Honour, but that the employees understood that as far as their contractual position pertained they were employees of Ready Workforce. In paragraph 7, your Honour, I have set out a passage, and it is quite a long passage, because I didn't want to be accused of selectively quoting, your Honour, but I have set out a passage of the cross-examination of Mr McGuckin where he was taken through - - -

PN1470

THE DEPUTY PRESIDENT: Sorry, where was that, Mr O'Grady?

PN1471

MR O'GRADY: Paragraph 7 of the supplementary submissions, your Honour.

PN1472

THE DEPUTY PRESIDENT: Yes.

PN1473

MR O'GRADY: But Mr McGuckin was taken through the process by which he was engaged by Ready Workforce, and what he understood was going on as part of that process and who he understood his employer was, and it is very clear that Mr McGuckin understood at all times that he was being employed by Ready Workforce under the terms and conditions of the agreements that he signed and acknowledged that he understood when he signed them. He also understood that it was very much part and parcel of that employment relationship that he would be assigned to various workplaces, including George Weston Foods, and that when he was there he would do what he was told by the client.

PN1474

The client would have the right to give him directions and to allocate work to him, the very indicia that are relied upon by Mr Lyons in support of his application or in support of the contention that these people are really being employed by George Weston Foods. Your Honour, the understanding of an individual employee as to what their employment status is or with whom they are employed is of course a relevant factor that depending on the circumstances your Honour can give more or less weight to.

PN1475

This issue was dealt with in the Kangan Batman TAFE case, your Honour, and I have set out the relevant quote in paragraph 10 of the supplementary submission, but in that case also there was a labour hire arrangement and there was somebody providing services to the TAFE college, and in the course of evidence the person was asked, well, who did you understand you were employed by? The Full Bench felt that in the circumstances of that case the individual's understanding was a matter of significant weight, and went on to hold that they were not employed by the TAFE college in those circumstances.

PN1476

In my submission, here too this is a matter that should be given significant weight and very much tends against a finding that the individuals concerned are employees of George Weston Foods. Your Honour, Mr Lyons as I understand it then points to the question of an implied contract and says, well, true it is there is no documentation entered into, but you can imply a contract of employment because of the fact that these people turned up to the George Weston Foods premises and performed services. Your Honour, it is one thing to imply a contract where there is no other explanation for what is going on.

PN1477

If somebody comes to my office and does some typing for me on a weekly basis and I pay them on a weekly basis, then even if we haven't come to any specific arrangements, whether it be oral or in writing as to the terms of their engagement, there would be no difficulty in the Court or this Commission implying a contract of employment between myself and that person. But where there is a clear contract, agreed to, without any form of duress by the parties that explains what the person is doing and why they are doing it and how they are getting paid, then in my submission there is no scope for an implication of the type suggested by Mr Lyons.

PN1478

Here we know why Mr McGuckin and the other individuals turned up at George Weston Foods. They did so because they were contractually bound to do so by virtue of their contract with Ready Workforce. Now, in those circumstances there is just no scope, as I say, your Honour, for the implication of a contract between George Weston Foods and individuals. The issue of an implied contract was discussed, or was the subject of consideration in a case referred to in paragraph 40 of the original submission, your Honour, Mason and Cox v McCann.

PN1479

Now, the circumstances of this case are, or the issue raised in this case is slightly different from the current proceeding, and I should perhaps just preface that. The situation in Mason and Cox v McCann was that the client had people working for a labour hire company who - and one of those individuals was injured. Mr McCann was injured. If Mr McCann was considered to be an employee of the client then there would be no common law liability or no ability to sue outside the workers' compensation legislation that pertained in South Australia, because that would all be governed by the equivalent of the Accident Compensation Act in Victoria.

PN1480

There would be a statutory scheme whereby there would be workers' comp payments. However, if he was held not to be an employee then he could bring an action for personal injury against the client, and so in order to defend itself the client asserted that Mr McCann actually was their employee and pointed to the fact that he came along every day and he did what we told him to do, and we had control over what he did or what he didn't do. The issue that was raised against the client was, there is no contract, and they said, well, look, we can imply a contract, and that position was rejected, and it was rejected by the District Court Judge at first instance.

PN1481

The matter then went on appeal to the Court of Appeal, or a full court, sorry, of a Court of Appeal, full court of the Supreme Court of South Australia, where it was rejected again. It then went to the High Court, and in a very succinct piece of transcript Gaudron J, of course somebody who was very familiar with employment law, having previously sat on the old Conciliation and Arbitration Court, decisively rejected the notion that you could simply imply an employment contract in those circumstances and emphasised the need for there to be a contractual relationship between the employer on the one hand and the person said to be an employee on the other, and also had regard to the fact that there was this other relationship, namely the labour hire company.

PN1482

Your Honour, I have set out what in my submission are the relevant passages of the various decisions in that case. You will notice, your Honour, that there was great reliance being put on the degree of control exercised by the client in that case, and Perry J in particular rejected that on the basis that that was explicable by virtue of the agreement that the worker had entered into with his labour hire employer, namely, he just like the persons who are being considered in this application, had agreed to do what the client tells him, and there was nothing controversial in all of that.

PN1483

Your Honour, in paragraph 43 I have also set out the part of the passage of the transcript. The full transcript I think is included in the bundle of material that I have handed up to your Honour. Your Honour, in paragraph 44 I have dealt with another decision which is consistent with what I have already said, namely that of Swift Placements Pty Limited v WorkCover Authority of New South Wales where once again control was not seen as decisive, given the explanation found in the arrangements between the client and the labour hire company.

PN1484

Your Honour, a case similar to or a case raising similar issues to this one came before the Commission in a case of Beltana Highway Mining and Others v CFMEU. That is a decision of Commissioner Bacon, and it is in print PR927067. I haven't referred to it in the written submission, your Honour, but it is in the bundle.

PN1485

THE DEPUTY PRESIDENT: I think I am familiar with it actually, Mr O'Grady. It is a fairly recent one, isn't it?

PN1486

MR O'GRADY: It was in January of this year, your Honour.

PN1487

THE DEPUTY PRESIDENT: Yes, I am familiar with it, actually.

PN1488

MR O'GRADY: I do have a copy. Excuse me, your Honour. I apologise. I don't have a copy for my friend. I am happy for him to have a look at the decision. The point that was made there, your Honour, is once again there was a labour hire arrangement. There was some pretty sloppy paper work, it must be said. There was really no differentiation drawn in the induction process that people working through the labour hire arrangement were given to those who were the employees, and the point was taken, well, these people are really the employees of the client.

PN1489

That proposition was rejected, notwithstanding the sloppiness of the paper work and indeed the adverse comments made by Commissioner Bacon in that case. It is simply authority for the proposition, your Honour, that where there is a clear contractual relationship between a worker and a labour hire company the fact that the client may treat these people just like they treat its employees, involves them in induction, involves them in various incentive schemes, doesn't transform the relationship from being an employee of the labour hire company to being an employee of the client.

PN1490

Your Honour, in that context, in my submission, the evidence of Mr Cartwright becomes very important. Your Honour will recall that Mr Cartwright was asked about the nature of his business and whether there was any significant difference in the way in which people who were working at George Weston Foods worked to the way in which the other 5000 or five and a half thousand people who provided work for this company, worked, and he said that there was no significant difference, that this was a pretty standard arrangement, and indeed, all the documentation associated with this arrangement was that - the standard Ready Workforce documentation.

PN1491

I won't read it to your Honour, but I have set out part of his evidence at paragraph 11 of the supplementary written submission. I also make the point in paragraph 12 of the supplementary written submission, your Honour, that the arrangement between George Weston Foods and Ready Workforce acknowledges not just that these people are employees of Ready Workforce, but in a way that they are an asset of Ready Workforce.

PN1492

Your Honour might recall the evidence of Mr Cartwright that there was provision of a penalty fee or a placement fee to be paid should somebody engaged by Ready Workforce take up employment with the client within a certain time frame, and Mr Cartwright's evidence was that that was to offset the costs associated with the placement of those employees if the engagement is one for a relatively short period of time. Your Honour, in paragraph 49 I deal with the joint employment issue, and clearly there is an overlap between the evidence that is relevant to this issue and the evidence that is relevant to the question of whether or not George Weston is the employer per se.

PN1493

I have referred to decision of Commissioner Johnson in the Australian Bank Employees Union v Advance Bank Australia Limited case. That is a decision of some antecedence now, your Honour, but your Honour will see that the same sort of argument was being run in that case that namely, well, these people are working for you, the client, we can infer a contract of employment in those circumstances, that really the labour hire company is nothing other than a payroll office, and that is not conclusive, very similar, your Honour, to the sort of submission that Mr Lawrence put to your Honour this morning.

PN1494

It was a submission that was rejected by Commissioner Johnson after he went through all of the indicia, and I have set out what Commissioner Johnson said, and also the submissions that were put by Ian Douglas QC who appeared for the banks in that case. And your Honour will see that for there to be a contract there are a number of prerequisites that have to be established. There has to be an intention to enter into a legally binding relationship with Advance Bank. There is no evidence, your Honour, of such an intention here. There also has to be valuable consideration shown to pass between the parties.

PN1495

Now, as I understand Mr Lyons he says, well, there is consideration. These people are coming along and providing services to you, George Weston Foods. But that is something that they are obliged to do pursuant to their contract with Ready Workforce. That is something that they have already been paid for. In my submission, it can't act as good consideration to support or good consideration to support a contractual relationship between those individuals and George Weston Foods.

PN1496

The issue of payment is also dealt with in the quote that I have set out there, your Honour, and your Honour will see that reference was made to the WP Insurance Services case. That case is, of course, authority for the proposition that the mere fact that you decide to pay somebody through another corporate entity doesn't mean that they are automatically employed by that other corporate entity. Well, that is a long way from the case before your Honour. Your Honour, can I perhaps deal with what is relied upon by Mr Lyons regarding the Domanski decision, and I understand you have got a copy of that decision that was handed up by Mr Lyons.

PN1497

THE DEPUTY PRESIDENT: Yes.

PN1498

MR O'GRADY: The facts of that case, your Honour, are succinctly summarised by Wilcox J in a very short decision running for some seven paragraphs but, in essence, your Honour, what was the case there was that Mr Domanski was employed by Endoxos Proprietary Limited and had worked with them for some time. Endoxos Proprietary Limited decided that it didn't want to employ Mr Domanski any more but it still wanted to retain his services. So it confronted him with a letter of resignation saying: sign this, you are resigning your employment with us, but from now on you will be engaged with a company called MLC Workplace Solutions, but you will be doing exactly the same thing, nothing will change. And, indeed, the phrase "nothing will change" was said and was something that a considerable reliance was placed upon by their Honours in this decision.

[12.26pm]

PN1499

Mr Domanski didn't want to sign but felt he had no choice so he signed the resignation form and continued to work just as before. Indeed, nothing did change. In those circumstances, Endoxos said they were not the employer of Mr Domanski any more and when that was challenged in the context of an unfair dismissal proceeding the Commission, at first instance, held that there was no employment relationship. That decision was upheld on appeal and it got to the Federal Court who overturned that determination in this case.

PN1500

But when one has regard to the particular facts in that case, in my submission, the conclusion of the Full Court is hardly surprising. It was, your Honour, the classic case of a sham arrangement. Indeed, that is the way it is described by Wilcox J where he says:

PN1501

The intention of this arrangement was to enable Endoxos to get out of their obligations as an employer.

PN1502

And ultimately he held that they hadn't done enough to give effect to that intention because it was so transparent. Mr Domanski had never met people from MLC, he didn't sign anything with them, he hadn't spoken to them before this engagement was entered into. It is a long way from the current situation, in my respectful submission, your Honour, and in this regard I would ask you to recall the evidence of Mr McGuckin about the process by which he was engaged and inducted with Ready Workforce. I don't know whether your Honour has looked at the video. There was none of that - - -

PN1503

THE DEPUTY PRESIDENT: I would like to be able to say yes, Mr O'Grady, but - - -

PN1504

MR O'GRADY: But, your Honour, the point is there was none of that and the other point, your Honour, is that here there was a subsisting employment relationship with the client which the client tried to re-jig for its own purposes and there is no suggestion of that here because there has never been any suggestion that these people have been our employees and now we are trying to foist them off to a labour hire company.

PN1505

The other brief points I would seek to make with respect to this decision, your Honour, are that it is a split decision in that whilst all of their Honours agree in the outcome, they do so for different reasons. Marshall J decides the case on the basis that there was no contract, if you like, between MLC on the one hand and Mr Domanski on the other and that appears at paragraph 71 of his Honour's decision. So he says, in effect, well, you have never spoken to MLC, the only piece of paper you signed was one that was provided to you by Endoxos, in those circumstances I just don't find that there is a contract between you and MLC. In those circumstances the fact that you continue to provide services to Endoxos and been paid gives rise to an implication that you are employed by Endoxos.

PN1506

Merkel J decides that, well, what was really happening is that MLC was engaging Mr Domanski as an agent for Endoxos. So he says, well, there is a relationship between you and MLC but MLC were acting as an agent for a disclosed principal, therefore, the real relationship remains one of between the individual worker and the client. Wilcox J says it doesn't really matter which way you go but seems to prefer the view of Marshall J and that appears in paragraph 2 of his decision.

PN1507

But, your Honour, it is clear, beyond doubt, that there is no basis for the finding of Marshall J, as supported by Wilcox J, on the facts of this case because on no view of it could you say that there isn't a contractual relationship between these individual employees and Ready Workforce. The existence of that contract has never been disputed. What seems to be being put, your Honour, is that that is a sham, as I understand it.

PN1508

Your Honour, on the question of joint employment, that is dealt within the written submission and you will see, your Honour, that the decision of Kittochside is referred to in paragraph 52 and the circumstances surrounding that case are set out in paragraph 53 and I won't take up time going through them. In paragraph 54 we deal with the US position and you will see that the quote appearing on the page after paragraph 54 commences sets out the definition of employer in the US legislation:

PN1509

Namely, the term "employer" includes any person acting as an agent of an employer directly or indirectly but doesn't include the United States.

PN1510

It was in the context of legislation designed to protect employees from sham employment arrangements and where there was a definition of employer in the terms that I have set out that the authorities relied upon by Mr Lyons regarding joint employment emerged and evolved and were developed. They are not authorities concerned with the question of whether or not there is a contractual relationship between somebody who is working through a labour hire company at a client's premises. And in my submission the law in Australia still remains the case that absent such a relationship there can be no employment and an absent such an employment, well, clearly there is no scope for the relief that is sought by the NUW in this case.

PN1511

Your Honour, in my submission the position really is that as is indicated in paragraph 15 of the supplementary submission. This isn't a case being pursued because there is any real doubt about the identity of the employer but, rather, this is a case being pursued because the individuals concerned are seeking a severance payment and believe that by pursuing this application and asserting that George Weston Foods is their employer they might be entitled to such a payment. And Mr McGuckin was really up-front about acknowledging that in the transcript and I have set out the relevant passage there.

PN1512

Your Honour, whatever may be the depth of that expectation and whatever basis it may have in the sense of, well, we have been there for some time and it is, in the scheme of things, it would be fairer if other people are getting it we should get it too. That doesn't, in my submission, establish that there is an employment relationship which is a precondition for the determination sought by the NUW. It certainly, of course, your Honour, doesn't assist in any way, shape or form with the jurisdictional hurdles that the NUW has to clear before we even get into this question of who is the true employer.

PN1513

Your Honour, it is for those reasons, in my submission, the application should be dismissed. But the last point I seek to make, your Honour, is that as I understand it Mr Lyons puts his case on the basis that there is a factual matrix that gives rise to an employment relationship. Your Honour, we have really only heard evidence in the most general terms about what these people do. We know something about what Mr McGuckin does, that he is a forklift driver, and there is some suggestion that forklift drivers might work under a different regime or different degree of regularity to other people.

PN1514

We know that at least three of the people who are the subject of this application have never worked for anybody else other than Ready Workforce at the George Weston Foods premises. I put to Mr McGuckin it was four. He conceded three but wasn't willing to concede the fourth. We have no real evidence as to the regularity of work performed by these individuals in that you might recall there was an exchange in the evidence regarding whether you ordinarily work or regularly work, and there was a question along the lines of: well, what does that mean; it means more often than not, or 51 per cent of the time on one view of it, your Honour.

PN1515

Now, your Honour, that may be an appropriate way of proving these matters where the union appears as a party principal in proceedings on behalf of its members as a collective mass where you have representative witnesses giving evidence in broad terms about what is happened to them, and the Commission can infer from that that they reflect the broad body of employees in their situation. But this is not that sort of case. Here each of the individuals who are the subject of this application and who the NUW seeks to represent are coming to this Commission and say, look at the circumstances of the what I have done and how I have done it over the time I have been at George Weston Foods, and find that I have an employment contract with George Weston Foods.

PN1516

Now, in my submission, there really isn't the evidence before your Honour to enable you to draw that conclusion; particularly where, as I understand Mr Lyons, he says that this is an evolving situation. He is not saying that all over hire arrangements give rise to an employment relationship between the employer and the workers; he is saying that, well because there was regular engagement, these people should be considered to be employees of George Weston Foods.

PN1517

A corollary of that, your Honour, is when they first turned up to work at George Weston Foods they wouldn't have been so considered. As to when that transformation took place and how it took place and what was the trigger for it taking place, your Honour just simply has no evidence and, in my submission, that does provide a significant barrier to making the determinations sought by the union, particularly in this context, your Honour. The entitlements sought by the union are entitlements that accrue per completed year of service.

PN1518

So it is not enough for the union to get the severance payments that it is seeking to assert that as at today, or for your Honour to find that as at today these individuals are employed by George Weston Foods. Because it is only if your Honour was to go on and determine that for a certain period of time they had been employed by George Weston Foods that the entitlement asserted would be owed to them. And, your Honour, in my submission, it is that difficulty that really underlies the entire application that is being put by the NUW in this case.

PN1519

This is really an attempt to transform what, on its face, is a pretty clear and simple arrangement identical to labour hire arrangements across the country into something that it is not; and the evidence just isn't there to do that. If your Honour pleases.

PN1520

THE DEPUTY PRESIDENT: Thanks, Mr O'Grady. Mr Fisher, I don't want to foreshorten your time, but how long do you expect to be? I would normally adjourn for lunch but if you are going to be relatively brief, then - - -

PN1521

MR FISHER: I am certainly not going to be finished by lunchtime, your Honour.

PN1522

THE DEPUTY PRESIDENT: I am sorry?

PN1523

MR FISHER: If your Honour was to rise at 1 o'clock, I certainly wouldn't be finished by 1.

PN1524

THE DEPUTY PRESIDENT: In that case, I will adjourn now and reconvene at 2 pm this afternoon.

LUNCHEON ADJOURNMENT [12.39pm]

RESUMED [1.58pm]

PN1525

THE DEPUTY PRESIDENT: Yes, Mr Fisher.

PN1526

MR FISHER: Thank you, your Honour. Your Honour, we rely on the material filed in our outline of submissions, but I will develop some of those issues in greater detail and refer to various aspects of the evidence which we will suggest are relevant to the determination of the issues. Our first submission is that the NUW, as agent for the employees,the subject of the dispute, is not competent to bring a notice pursuant to section 170LW seeking private arbitration. And we say that because neither the NUW nor the employees the subject of the dispute are a party to the certified agreement and, therefore, are not empowered under the dispute settlement provisions to bring the notification.

PN1527

Perhaps before I go to the detail of the submissions, I would like to make a general observation in relation to the evidence in the proceeding. We say that the NUW in this matter is obliged to bring evidence which is sufficient on the balance of probabilities to discharge an onus that they have standing to properly bring the application; that the Commission has jurisdiction to entertain the form of relief that they seek; and in the event that they find that jurisdiction, that there is merit in granting the form of relief that they seek.

PN1528

The matter involves two forms of relief which are sought in the alternative and identified in the NUWs outline of submissions at paragraph 7 and 61. The relief sought is on behalf of 12 named employees but the NUW elected to only lead one of those employees as a witness in these proceedings. A fair deal of Mr McGuckin's evidence was led as either hearsay or opinion and, in our submission, should be afforded the appropriate weight.

PN1529

Other evidence was led by virtue of the surveys but, again, the deponents of the surveys were not led as witnesses and neither were the circumstances in which the surveys were completed evidenced in this Commission. We again say that that is a material factor going to the weight of - that can be given to the evidence adduced through the surveys. And we also note that through the questioning of one witness, there was obvious confusion as to at least parts of the survey as to what they meant and what the questions meant. In terms of the evidence of Mr McGuckin, we believe that on some central issues it is at times confused or otherwise unreliable, and I will deal with aspects of that evidence and some of the contradictions of Mr McGuckin as I go through.

PN1530

Mr O'Grady on the last occasion that we were before your Honour described the application as most unusual. We believe that that is a classic understatement. If we consider the parties bound by the certified agreement, we would support and adopt the submissions of Mr O'Grady that the parties are George Weston Foods Limited trading as the Biscuit and Cake Division at Abbotsford, and the following union and employees of George Weston trading as the Biscuit and Cake Division, Victoria, who are members or who are eligible to be members of the Transport Workers Union employed in classifications or occupations listed in the Transport Workers (Mixed Industries) Award or any successor awards.

PN1531

Now, in our submission, there is no ambiguity in those words. They are clear on their face as to what they mean. And so the Commission, in interpreting what the parties to the agreement are, should take the words in the parties bound clause according to their ordinary meaning. And we say that that means that the parties are George Weston Foods, the Transport Workers Union, employees who are members of the TWU - and there is no evidence or suggestion that there are any members of the TWU who are the subject of this dispute, or employees who are eligible to be members - and again we say that there is no evidence which would enable the Commission to make a finding that any of the 12 employees that are the subject of this dispute are eligible to be members of the TWU.

PN1532

As we said at the outset, we say that the onus on bringing forward that evidence rests with the applicant in these proceedings, or the NUW. There is also no sufficient evidence to demonstrate that any of the 12 employees are employees of a kind who could be employed within the classifications of the Transport Workers (Mixed Industries) Award. The question as to whether the classification structure in the certified agreement, through some means, increases the scope of the certified agreement is a submission in error we say.

PN1533

We believe that the question as to what people can be required to do under a certified agreement and who are rightly parties to a certified agreement are fundamentally different questions. In our submission, the certified agreement on its face is clear as to who the parties are, and neither the NUW nor the employees the subject matter of the dispute are parties and so they cannot - they do not have standing, they cannot bring an application of this kind before the Commission according to the dispute settling procedure of the certified agreement.

PN1534

We would contend that it is not for this Commission to rewrite the parties provisions to the certified agreement to correct what my friend alleges is a defect in the agreement but we say there is no defect. There is no requirement to define scope and application of a certified agreement according to a classification structure within an agreement, although we recognise that some certified agreements do that. But the Transport Workers Union and George Weston Foods did not agree to do that in this certified agreement and that is not the proper interpretation or operation of this certified agreement.

PN1535

If we turn to the operation of the dispute settling procedure, in our submission, it is clearly limited to only giving the parties to the certified agreement the right to bring a matter of this kind to the Commission. And in the context of the Commission's jurisdiction under section 170LW, that is not a startling or surprising finding. It would be a most uncommon circumstance if a union not party to an agreement or employees not party to agreement could impose, in effect, a contractual binding obligation to submit to this Commission disputes that don't relate to either of the parties to the agreement for decision by private arbitration. And we say that that cannot be imported on a proper reading of the dispute settling procedure.

PN1536

Now, in the event that the Commission is not satisfied that the parties clause is clear and unambiguous on its face, there is evidence that has been led in relation to the intention of the parties to the certified agreement at the time that the certified agreement was made, or at least to one of the parties. There is evidence in relation to George Weston Foods' view as to who was to be properly covered by the agreement.

PN1537

We know that the employees who are the subject matter of the dispute, or at least some of them, were engaged by certain agencies at the time that this agreement was made. Section 170LJ sets out certain requirements for an agreement to be capable of achieving registration in this Commission. One of those is that a valid majority of persons employed at the time whose employment would be subject to the agreement must have genuinely approved the agreement. And section 170LT sets out the certification requirements that this Commission must be satisfied in order to certify an agreement. Section 170LT(1) indicates that the Commission must certify an agreement where it is satisfied that those requirements within that section have been met.

PN1538

Now, the evidence of Mr McGuckin, which can be found at paragraph number 178 to 183, clearly indicates that Mr McGuckin had no involvement in the making of the agreement. He didn't vote on it. He wasn't provided with a copy, and he wasn't provided with an explanation by George Weston Foods of the agreement and what it would mean to be covered by the agreement. Now, in our submission, that is evidence of George Weston Foods' intention that the agreement was not designed to properly cover those workers.

PN1539

Now, when you consider the terms of the operation of section 170LT(1), in my submission, it leads to only two conclusions in relation to that process which made the agreement. The first is that the requirements of the section weren't met because people who were intended to be covered weren't given an opportunity to vote and weren't provided with an explanation and, therefore, when the agreement was certified it was certified wrongly because it didn't meet the provisions of section 170LT.

PN1540

Now, that is a contention which nobody in this proceeding and no party to the agreement, although we haven't heard from the TWU, would suggest the Commission should adopt. In fact, Mr Lyons seeks relief specifically enforcing the certified agreement. So certainly it is not a contention of his that the agreement was wrongly certified because the people that he seeks to represent weren't included in those processes of formation and creation of the agreement.

PN1541

The other only conclusion, in my submission, that you can draw is that clearly the people that are the subject matter of this dispute were never intended to be covered by this agreement, or at least not as employees of George Weston Foods. I don't see that there is any other alternative, your Honour, when we look at the process of formation and the operation of the agreement. It is advanced by Mr Lyons against my client that they are a successor, assignee or transmittee of George Weston Foods and - - -

PN1542

THE DEPUTY PRESIDENT: I am not aware of Mr Lyons putting that particular position.

PN1543

MR FISHER: Well, it is in his written submissions, your Honour.

PN1544

THE DEPUTY PRESIDENT: Whereabouts is that?

PN1545

MR FISHER: Paragraph 5:

PN1546

Pursuant to the Workplace Relations Act section 33, the Commission may perform a function or exercise a power on the application of a person bound by a certified agreement. The NUW contends that by the force of the Workplace Relations Act, section 170MB(1)(b), the persons are persons bound by the agreement and entitled to seek the Commission perform a function or exercise a power.

PN1547

Now, perhaps I am reading into the submissions but I understood that that assertion of general transmission under the transmission provisions, which is section 170MB, could only be against my client and not against George Weston Foods as they are a party principal to the certified agreement.

PN1548

THE DEPUTY PRESIDENT: Yes. Thank you.

PN1549

MR FISHER: Now, in relation - - -

PN1550

MR LYONS: Your Honour, perhaps I can clarify that. Look, there is an error in the submission. That ought to have been a reference to 170M(1)(b) or 170M(1), sorry. So it is not a matter - we don't contend that there has been any transmission of business. So simply that they are a person bound by the agreement, not - - -

PN1551

THE DEPUTY PRESIDENT: I see, yes.

PN1552

MR LYONS: Yes, not a successor or assignee.

PN1553

THE DEPUTY PRESIDENT: Yes.

PN1554

MR FISHER: Mr Lyons has clarified that position. I don't need to go into the transmission issue, your Honour.

PN1555

THE DEPUTY PRESIDENT: Thank you.

PN1556

MR FISHER: Now, it is asserted by Mr Lyons that, in effect, the arrangement entered by George Weston Foods and my client is merely a sham arrangement and that the contract which exists between the employees that are the subject matter of this dispute and my client isn't that of an employment contract but merely my client provide some kind of payroll administrative service to George Weston Foods. As I understand the argument, in Mr Lyons' mind George Weston Foods has made a decision to outsource the payroll administration function only to my client, and that is all my client does. And by virtue of that, there is no employment contractual arrangement between my client and the employees who are the subject matter of this dispute.

PN1557

THE DEPUTY PRESIDENT: Well, in fairness, I am not sure that Mr Lyons put that your client had made a decision to outsource the payroll function. I think he was more putting that that was, in fact, the circumstance that pertained.

PN1558

MR FISHER: Yes.

PN1559

THE DEPUTY PRESIDENT: Yes.

PN1560

MR FISHER: So in Mr Lyons' mind, when you analyse the factual matrix and the full nature of the arrangement, he characterises it as one of purely a payroll service only. Now, in addressing that issue, it is important to understand the nature of my client's business. Ready Workforce is a division of the Chandler and McLeod Group which provides recruitment, temporary labour hire, site testing, human resources consulting, and is a registered training organisation. It has 54 branches in Australia and New Zealand with 1500 clients, 600 direct employed staff, and 6500 temps.

PN1561

Ready Workforce, which is a division of Chandler and McLeod, is a temporary labour hire business which specialises in unskilled, semi-skilled and trades employees. It has 29 branches with 800 clients and 5500 temporary employees on assignment on any day. Now, the labour hire agreement which was entered on 2 November 2001 between George Weston Foods and the Ready Group which now trade as Chandler and McLeod Group defines the nature of the commercial arrangement and services that the parties agreed the Chandler and McLeod Group and Ready Workforce would provide to George Weston Foods.

PN1562

And Mr Cartwright deals with the nature of that arrangement in his evidence commencing at paragraph 18 and what he states is that as part of these duties, Chandler and McLeod Group agrees to supply George Weston's with temporary employees of Chandler and McLeod as notified from time to time by George Weston Foods, to ensure that no temporary employees of Chandler and McLeod Group commence work at George Weston sites until it is confirmed in writing to George Weston Foods that all temporary employees have received the appropriate training and induction, and ensure that each temporary employee provided to George Weston Foods is informed in writing prior to commencing work at George Weston Foods' sites that a person is not an employee or contractor of George Weston's and that the person is and will at all times be an employee of Chandler and McLeod.

PN1563

Now, paragraph 19 goes to cite a particular part of the labour hire agreement at clause 3.3 which clearly states that Chandler and McLeod will be liable under the terms of the labour hire agreement for a range of liabilities and they include:

PN1564

...the payment of remuneration to employees, agents, servants and contractors of the supplier, Chandler and McLeod Group, including salaries and wages, superannuation, annual leave, sick leave, long service leave and other benefits to which any of them may be entitled under the contract of service with the supplier or under any rule, common law or industrial instrument, the payment of all taxes and duties in respect of such remuneration and benefits, compliance with and the cost of compliance with all statutory award or other legal or contractual requirements to such employees, agents and servants and contractors, responsibility for the maintenance of and the cost of obtaining one or multiple workers compensation policies providing coverage for all workers employed by the supplier.

PN1565

So, quite clearly, the commercial obligation upon Chandler and McLeod Group is to take on a range of risks and responsibilities in relation to this group of workers which would have them standing with those risks and those responsibilities as their employer. They include things like being responsible for, ensuring that these employees have appropriate Workers Compensation coverage, accepting the responsibilities for these employees in the event that they are injured in the course of their work when they are employed with Ready Workforce.

PN1566

In addition to that, they are taking on the obligation under the Occupational Health and Safety Act as the employer of these employees, and we know that those obligations are serious, they are criminal prosecutions through codified torts of strict liability. Now, they are not risks and responsibilities that an organisation would take up in circumstances where they did not need to. They are not risks which pass with a decision to set up an arrangement which is, in fact, an administrative process for payrolling employees. These are serious risks and serious responsibilities, and it is incumbent upon people to clearly know which entity bears the responsibility and obligation for them and which entity does not.

PN1567

The contract goes on to define other aspects that Chandler and McLeod and George Weston Foods committed to in terms of the engagement of these works, and they are summarised at clause 20 in Mr Cartwright's affidavit and they include:

PN1568

Maintaining human resources policies, ensuring temporary employees are trained and comply with George Weston Food policies and work rules, ensure all reasonable attempts are made to ensure that all work is carried out pursuant to the labour hire agreement, complies with all occupational health and safety requirements and that Chandler and McLeod Group will investigate all injuries and do everything practical to rehabilitate an injured employee.

PN1569

They are all obligations which would derive to somebody who is rightly and truly an employer, not somebody who is providing an administrative service. They are binding, contractual obligations upon Chandler and McLeod Group in relation to the workers that are the subject matter of this dispute. What we suggest, your Honour, is that the arrangement that Chandler and McLeod Group and George Weston Foods has entered is a fairly typical, albeit more sophisticated, labour hire arrangement which is seen we know through the majority of Chandler and McLeod clients, 5500 blue collar temporary workers; and the evidence of Mr Cartwright was that the arrangements with George Weston Foods was reasonably normal amongst his business.

PN1570

Now, what we suggest is that the process that Ready Workforce goes through when it engages as employees temporary workers is at the more sophisticated end of normal temporary labour hire services. And that can be seen by analysing the process that was undertaken to transition these workers from - or at least the ones that were working with George Weston's engaged by other employment agencies. And as we know, there were three or four that had had no previous relationship with George Weston Foods.

PN1571

So at the time that Ready Workforce won the contract, Mr McGuckin was engaged by an agency contracting which he attests to at paragraph number 100. At paragraph number 109 Mr McGuckin describes the process of transition but he does so in a very brief way and, in my submission, in a reasonably accurate way where he recounts a meeting at the Tottenham site where he was addressed by Mr Timmins.

PN1572

And if we look at the actual process which was undertaken, and that is attested to primarily by Mr Coghill, we see that it was actually a very detailed process that Ready Workforce went through to satisfy themselves that they should appropriately offer these workers employment with Ready Workforce so that they could be satisfied that they could place them at George Weston's in a manner which met George Weston's requirements and Ready Workforce's requirements, which I have referred to under the commercial contract.

PN1573

Mr Coghill didn't believe that all temps were transferred. He states at paragraph number 1011 there was a joint meeting with representatives of George Weston Foods and Ready Workforce at Tottenham. Mr Coghill addressed the meeting and employees were given a starter pack. They were told that they had to attend the Altona office to undertake the induction of Ready Workforce. If I could take you to the specific transcript reference, Mr Coghill, I believe in cross-examination at paragraph number 1018 states - he is asked some questions about whether he said in this induction, "If you want to keep your job, you have got to sign up with Ready Workforce." And he says:

PN1574

No, I didn't say that. I said if you want to come to work and work here, then you need to come and register with us. However, I also went on to say there is no guarantee of employment here as we have our own processes and procedures and there is no guarantee to employment as a casual.

PN1575

And he is asked:

PN1576

What did George Weston Foods say to you about the employees? Did George Weston Foods encourage you to take the existing employees?

PN1577

And he says:

PN1578

The general rule, the bulk of the people, we understand, were performing their tasks satisfactorily. However, they -

PN1579

referring to George Weston's -

PN1580

gave us the freedom to make that final call. If they did come up to scratch from our point of view, then there was no pressure placed on us to put people in. We had a requirement of a certain number of people we needed to put in.

PN1581

Mr Coghill deals with the process of transition in his affidavit which is RWF3, commencing at paragraph 7, and what he states is that the process of Ready Workforce - and this is paraphrasing - in my submission, may be described as a very detailed process. The employees are given a starter pack which is found at PC2, and we can see from the front page of that that the information contained in the starter pack has a Ready Workforce employee's code of conduct. People are given two copies because they need to sign one and return it.

PN1582

They are given a Ready Group temporary employee agreement terms and conditions. Again, they are given two copies because that is the contract of employment that Ready Workforce requires employees who accept offers of employment from them to execute. They are given a payroll authority and bank details, a staff registered change of employee details, tax file number declaration, superannuation membership application form - and that is one of the aspects of employment which varies from the George Weston Foods direct employees people - and a Victoria Police consent to check and release police record form.

[2.26pm]

PN1583

If we go through the process, PC5 contains the induction process, PC6 contains an industrial candidate registration form, and that form not only requires people to register, but contains a pre-employment health assessment, a privacy information form, and also an industrial candidate registration form which requires people to detail a large range of information about their previous experience in a range of blue collar kind of work and clients and you will see, your Honour, it is in fact a very detailed document that employees go through as part of the induction and process of Ready Workforce satisfying themselves that a candidate is appropriate to be offered employment by Ready Workforce.

PN1584

PC7 and 8 are the videos that employees are required to watch as part of the induction process which deal with matters of safety and matters of expectations of employees of Ready Workforce. PC9 is a questionnaire which tests employees' understanding of the safety aspects of the induction process. PC10 is an acknowledgment of the induction process. PC11 is the light industrial skills analysis score card. PC12 is the temporary employment agreement and if we turn to that, there are a number of issues that it deals with.

PN1585

Firstly, it indicates that it is a temporary employee agreement and it indicates that, in the second paragraph, and this is in response to Mr Lyons' submission that through the operation of the term remuneration, and I think he was referring to clause 9 of the temporary employment agreement, that somehow Ready Workforce imports the whole of the certified agreement as part of their common law contract of employment, that was what I understood he was saying may be - or at least within his view - was the operation of clause 9.

PN1586

In relation to that we say that paragraph 2 of the temporary conditions of employment clearly indicates that, as a temporary employee, some conditions of your employment may be set by relevant award or site or enterprise agreement, but the conditions stated in that award, site or enterprise agreement shall not form part of your common law contract of employment. So there is an express statement that the awards or relevant site agreements which may form part of the conditions of employment are expressly not part of the common law contract.

PN1587

And the Byrne and Frew authority of the High Court indicates that unless there is an express statement that an award or registered agreement does form part of your contract, there is a presumption that it doesn't, but Ready Workforce's contracts go further and in my submission expressly put that beyond doubt by that statement. The next paragraph requires employees to:

PN1588

Read the following carefully and sign this form to confirm your understanding of the terms and conditions of your temporary employment.

PN1589

And those conditions commence by indicating:

PN1590

I have read, understood and agreed to the conditions set out below.

PN1591

The first clause expressly indicates that the employee - that the person is in employment with Ready Workforce on a temporary basis and goes into some detail. And the evidence of Mr McGuckin, and it was referred to by Mr O'Grady at paragraph number 237 to paragraph number 280, and I would also refer you to paragraph number 318 and 319. And the evidence there was that Mr McGuckin knew he wasn't an employee of George Weston's, he knew he was an employee of Ready Workforce. And at paragraph number 318 and 319 preferred an opinion that he thought the other people, who are the subject matter of the dispute, held the same view that he did in terms of knowing that they were employed by Ready Workforce.

PN1592

When we go on and consider the other terms of the temporary employee agreement, at paragraphs 4, 5 and 6 they deal with elements of the obligation for employees to accept that they are under the care and control and supervision of the client company. And paragraph 5 makes it clear that part of the need for that provision is to ensure that the occupational health and safety policies of Ready Workforce's and Ready Workforce's customers are adhered to. So again there is an express agreement which recognises in the contract that Ready Workforce has obligations to its employees in terms of occupational health and safety and therefore requires their employees to commit contractually to following their policies and the policies of their clients.

PN1593

In the labour hire context, that is a very practical contractual commitment because a labour hire employer will never control the premises which their employees are going to. By the very nature of a labour hire arrangement, the employees are always going to a client's premises, the labour hire company is never the controller of the machinery at the client's premises, nor the physical set up. And so the labour hire clients - the labour hire company's ability to control the premises and the risks that arise from the premises is very limited and so Ready Workforce has elaborate induction processes to ensure that employees understand these obligations, and in part that is because Ready Workforce accepts that it cannot control these aspects of all its clients' premises.

PN1594

In terms of the remuneration, the submission from Mr Lyons was that clause 9 imported the certified agreement in its entirety. And your Honour raised a question as to whether the word remuneration could import the operation of the dispute settling procedure. Well, we say simply that the agreement does not import the certified agreement at all and certainly there is no way the term remuneration could be read in a manner which would import a dispute settling procedure. But if you consider the agreement in its entirety, paragraphs 9, 10, 11, 12, 13 and 14 all deal with aspects of specific employment arrangements, specific conditions, if you like.

PN1595

So paragraph 9 deals with the remuneration and the fact that people are employed on an hourly basis under relevant provisions of appropriate awards, site or enterprise agreements. Paragraph 10 deals with the hourly rate. Paragraph 11 deals with penalty rates and the like. Paragraph 12 deals with public holidays. Paragraph 13, superannuation, and paragraph 15, sick leave. And they all deal with terminology of the appropriate award, site or enterprise agreement or the relevant award, site or enterprise agreement.

PN1596

And we know that the evidence of Mr Cartwright was that there is a range of options available to determine what specific contractual conditions Ready Workforce will reach with its employees. Clients may have awards which apply to them. Ready Workforce may look at awards which apply to their clients. Ready Workforce might have independent of that awards which apply to them and not their client. Ready Workforce may look at a client's enterprise agreement but they may also have an enterprise agreement registered which obliges them to meet those conditions and, by virtue of that, certainly not the conditions of a client certified agreement.

PN1597

Or they might reach aspects of terms and conditions of employment by agreement and that can be at times above all those minimum levels, whether they apply legally to Ready Workforce or whether they apply legally to Ready Workforce's client and Ready Workforce would just have regard to them. The temporary employment agreement finishes by indicating that each temporary worker declares that the employment related information which they provided to Ready Workforce is true and correct, that they have read and understood the terms and conditions of employment as detailed above and accept that Ready Workforce and/or its customers' rules governing union membership, medical requirements, safety regulations, time and attendance at work, and any other conditions that work on site to which the person is assigned from time to time.

PN1598

And again they accept the terms and conditions of the offer of employment as detailed below and they indicate that by signing under their name and having that signature witnessed. And that is a process that all the 12 employees, the subject matter of this dispute, went through with Ready Workforce at various times after November when Ready Workforce was successful in picking up the contract with George Weston Foods. Now in terms of the formation of the contract, it is our submission that this Commission should have regard to the authority in Kangan Batman TAFE in terms of the question of whether, in looking at an issue of who is an employer, it is a question of whether a contract exists or a question of indicia of control, which we say are more properly considered to determine what kind of contract exists once it is established that a contract exists.

PN1599

And that was a proposition that Kangan Batman TAFE, which is a Full Bench authority of this Commission by the President, Vice President McIntyre and Commissioner Redmond, and they were in fact placed with competing submissions on that proposition. Dr Jessup QC, who represented Kangan, made a submission at paragraph 43, which is summarised by the Full Bench. Dr Jessup, I apologise, he appeared for AAWS, submitted that Commissioner Simmonds ignored the fundamental question, was there a contract at all between Mrs Fox and Kangan?

PN1600

An examination of the facts demonstrated that there was no contract. In the absence of any contract, it was appropriate to consider decisions such as - it was inappropriate to consider decisions such as Brodribb Sawmilling above, which went to whether a contract was one of service or one for services. And I notice that Stephens and Brodribb and the Vabu case are ones both relied on by Mr Lyons. The Full Bench had the benefit of the alternative submission from Mr Willoughby Thomas who appeared for Ms Fox, and that submission is summarised at paragraph 44.

PN1601

Now, the Full Bench considers these competing submissions and determines that the appropriate way to approach these matters is to determine whether in fact a contract at all exists first, and only if the Commission is satisfied that it does, that it then goes on to look at issues of indicia of control to determine what kind of contract that was. And the Bench makes that finding at paragraph 89:

PN1602

For the reason we have given, it is our view that no contract existed between Ms Fox and Kangan because of the essential elements for a contract three were missing, namely, an intention of the parties to create a legal relationship, the terms of which are enforceable, an offer by one party and an acceptance by the other, and valuable consideration. This conclusion necessarily involves a rejection of Mr Willoughby Thomas' submission that it was appropriate to consider, as Commissioner Simmonds did, the existence or otherwise of the indicia specified in, for instance, Brodribb Sawmilling. We respectfully agree with the comments of Handley JA in Teen Ranch -

PN1603

which was quoted in the decision,

PN1604

that in determining the existence of a contract, the decision in Brodribb Sawmilling is not relevant.

PN1605

Now, we say that authority is directly relevant to this matter and that the issue that the Commission should consider in coming to a decision about whether George Weston's is an employer is a question of formation of contract. We say that quite clearly there is a contract formed between Ready Workforce, Ready Workforce accepts all the obligations under that contract that an employer should. And unlike some of the other cases that have been referred to, this is not an arrangement where employees are sought to be moved from an employment context to one style as an Oddco kind of context where somebody is an independent contractor and under and independent contracting arrangement looses some of the benefits and protections that employees are afforded.

PN1606

And if we look at the recent authority of - bear with me for one second - if we look at the recent authority of Damevski, and Mr O'Grady summarised the facts in the case quite succinctly and I don't go over that ground, but do emphasise that this was a situation where a person had been employed by an entity and they were placed in a situation where they were forced to resign to move to an independent contractor arrangement under an Oddco style model; the Bench found that the Oddco style model wasn't satisfied but that was the attempt.

PN1607

So it was an attempt to move somebody who was directly employed to somebody who was an independent contractor. Now the employees that are the subject matter of this dispute, nobody is suggesting that there is any attempt to move them to an independent contractor arrangement, Ready Workforce accepts that they are their employees and that they have all the normal obligations of an employer of these workers under their contract of employment as their employer. The decision itself, in terms of what the Damevski case was about, is conveniently summarised by Merkel J at paragraph 123 when he says:

PN1608

The present matter concerns an employer's endeavour to terminate the employment of its employees and to simultaneously contract with an independent agency for the provision by those employees supposedly acting as independent contractors of the same services the employees had previously provided in their capacity as employees. The issue arising is whether after the termination of their employment, the former employees provided their services to the former employer as employees or as independent contractor. That issue is of some importance because of the trend for both public and private sector organisations to outsource some of their labour requirements.

PN1609

Now, if we have a look at this decision, the decision of Wilcox J describes in short term some of the specific factual matters which related to this relationship, and he does so at paragraph 5:

PN1610

I refer first to MLCs position. There is no evidence that Mr Damevski entered into either a written or oral agreement with MLC. No evidence was adduced of any conversation between Mr Damevski and any representative of MLC. No document addressed to MLC and signed by Mr Damevski was put into evidence. There is a total absence of material that would be necessary to enable either Mr Damevski or MLC to prove the existence of a contract between them.

PN1611

Now, that is in absolute and stark difference to the factual circumstances in this matter. Now, the decision of Marshall J in fact at paragraph 72, and I know Mr O'Grady referred to paragraph 71, actually deals with the authority of Kangan Batman TAFE, to which I have previously referred, and it indicates:

PN1612

The decision of the Full Bench of the Commission in Advanced Australian Workplace Solutions v Kangan Batman TAFE also concerned an Oddco arrangement. Unlike Mr Damevski, Ms Fox, who had applied for relief in respect of her termination, had actually signed an agreement to contract in a similar form to the one included in MLC information pack. The Full Bench in Advanced Australian Workplace Solutions relied heavily on the evidence of Ms Fox and the representatives for Kangan, which indicated that neither of them thought they were in a relationship of employer and employee.

PN1613

Now, those two specific factual matters that his Honour refers to in Kangan Batman TAFE are both present in this circumstance. There is a signed contractual agreement between Ready Workforce and the workers the subject matter of the dispute and there is also no suggestion in the evidence that there is any confusion, at least in Mr McGuckin's mind as to who his proper employer is, that being Ready Workforce.

PN1614

There is some evidence in relation to discussions that occurred over time between George Weston Foods and Mr McGuckin, and they can be referred to at paragraph number 117, and what we say there is that the evidence of Mr McGuckin is quite clear that he initiated the conversations with George Weston about employment with George Weston. But no one could suggest, in my submission, that any of those discussions could amount to an offer of employment by George Weston, that they simply fall well short.

PN1615

In fact, Mr Timmins at paragraph number 623 says that he made no promises in relation to employment with George Weston's. Mr McGuckin knew he wasn't employed by George Weston's. The relevant transcript references are quoted by Mr O'Grady, paragraph number 325 to 328, and then at paragraph number 244 Mr McGuckin agrees that it is very clear that he is not an employee of George Weston Foods.

PN1616

So, we say, your Honour, that quite clearly all the aspects of formation of contract on the evidence clearly established between Ready Workforce and the workers that are the subject of the dispute, but certainly the aspects of formation of contract are not satisfied in terms of any employment between the employees that are the subject of the dispute and George Weston's. There is no offer; there is no acceptance. There is no consideration and there is no intention. Now, if we go on to consider some of the indicia, and in my submission, relying on the Kangan Batman TAFE they are less relevant because of the proper application of those legal principles, but as Mr Lyons has referred to them, I will deal with them.

PN1617

In terms of control and supervision we simply say that it is a standard feature of any labour hire arrangement that the client will have to take some supervision and control and that if that is imported as an indicia which tends to remove an employment relationship it would have the ability of overturning the whole labour hire model in Australia, in my submission, because every labour hire arrangement will have that element, and that is because no labour hire company controls the premises at which their workers work. Ready Workforce recognises that it is such an important aspect that they actually require employees to contractually agree to it.

PN1618

THE DEPUTY PRESIDENT: I think as much has been conceded, Mr Fisher, in the conversations that Mr Lyons had, so I am not sure that we gain much by going over that point.

PN1619

MR FISHER: Well, I understand that Mr Lyons was still advancing it as an indicia which would tend to indicate that the employment relationship was other than with Ready Workforce, but rather with George Weston Foods.

PN1620

THE DEPUTY PRESIDENT: Yes. Well, certainly from my perspective, Mr Fisher, I accept it as being a normal part of a labour hire arrangement.

PN1621

MR FISHER: Thank you, your Honour. There is some evidence from Mr McGuckin that he in fact understood that Ready Workforce was the body that was empowered to issue warnings and counselling and disciplining and demoting, and those references are paragraph number 357 and paragraph number 359. The evidence of Mr McGuckin in terms of who he notifies if he is not required, how he has time off, who he calls when he has sick leave, and who controlled when he worked and didn't in my view is equivocal.

PN1622

The contrasts are found in the transcript in terms of if he is not required at paragraph number 121, but then at paragraph number 391 and paragraph number 396 and paragraph 396 in terms of who he calls in the event that he is sick, there is a contrast in his evidence at paragraph number 125 as compared to paragraph numbers 369, 370 and 371. And it is suggested by him that the actual control of when he worked was handled by Ready Workforce, and that was prior to September, and that is found at paragraph number 368.

PN1623

[2.51pm]

PN1624

In terms of the contact with Ready Workforce, the submission of Mr Lyons is that there was virtually no contact other than for payroll purposes. We do not believe the evidence supports that. There is evidence from Mr McGuckin that Ready Workforce consultants would come out and see the employees once a month, at paragraph number 132. Mr Timmins did not agree that there was very little contact, at paragraph number 566.

PN1625

The on site consultant did indicate that one of the purposes that she would attend site as to collect paperwork, but when she did that she would go out and walk through the warehouse, and say hello to the people. And Mr Timmins indicated that she was certainly on the floor. Those references are at paragraph number 639 and paragraph number 680.

PN1626

There is evidence in the affidavit of the consultant at paragraphs 15 and 17 that some of the workers that are the subject matter of the dispute also made independent inquiry of Ready Workforce to gain approval for things such as mortgages, and the like, and sought letters from their employer to put before a financial institution so that they could have finance approved. They are contained - the references to those are in paragraphs 15 and 17 of her statement - no, I apologise, the references to those are in RWF3, the statement of Mr Coghill, at PC20 and 21.

PN1627

In terms of the regularity of hours, Mr McGuckin indicated that the hours had changed. George Weston Foods had sold products, at paragraph number 127. That there was no roster in place since Ready Workforce took over the contract, at paragraph number 352 to 353, and that Ready Workforce controlled when they worked, at paragraph number 368.

PN1628

Mr Cartwright and Mr Coghill, Mr Cartwright at paragraph number 876 and Mr Coghill at paragraph number 1000, gave evidence about what a normal labour hire relationship would be, and the fact that there might be less day to day contact with the temporary employee of Ready Workforce. Where employees were on an assignment for a longer period of time, there might not be daily contact about who was turning up, and that was a standard feature. The evidence of Mr Cartwright was, though, when it appeared that there was confusion amongst employees as to who their employer was, he instituted a more robust process of contact.

PN1629

In terms of the NUW second alternative submission, which is the submission that is sought for relief directly against my client, we say that the nature of the employment of the workers that is the subject matter of the dispute is on day hire, and that they are employed for a specific purpose. That purpose is for assignment at George Weston Foods.

PN1630

We have described the various options that are available in terms of setting their conditions, and I have also responded to Mr Lyons' suggestion in relation to the importing of the operation of the certified agreement by virtue of their common law contract. We simply say that there is no jurisdiction to entertain the form of relief that Mr Lyons seeks through the alternative submission, and we do so for all the reasons advanced which would deny Mr Lyons standing or jurisdiction to entertain the relief against George Weston Foods.

PN1631

In addition to that, however, and dealing with an aspect of merit, Ready Workforce has approached the temporary employees to attempt to identify from them what future employment would be of interest to them, in the event that their assignment at George Weston Foods ends. The evidence of all the Ready Workforce witnesses was consistent on this point, and that is that it is in Ready Workforce's interests to ensure that these workers are placed as soon as possible in an alternative assignment, in the event that this assignment ends.

PN1632

Mr Coghill gave evidence about the nature of the business that they have out at the Altona branch. A large proportion of it is warehousing and distribution work, and they have a large client base. Those references for Mr Cartwright are at paragraph number 818, Mr Coghill at paragraph number 1077 to 1080, and 1088 to 1090. Now, Mr McGuckin's evidence was that he was continuing on an assignment today with Ready Workforce, or on the day that he gave his evidence. He also gave evidence that he was aware he had received a survey, as had the other workers in question, from Ready Workforce, which sought a range of information to try and give Ready Workforce input into what employees' desires were for future employment, in the event that their assignment ended.

PN1633

Only two of the 12 employees responded to that survey, and only one of these employees indicated that they had a desire to seek permanent employment, the other employees indicating that they had no desire to seek permanent employment. In my submission, it is difficult for Ready Workforce to assist these employees gain future employment without that kind of information, because that kind of information is practical information which allows my client to ensure that they have the best possible opportunity to place these employees in future employment.

PN1634

For all these reasons, your Honour, that we have advanced, and relying on our outline of submissions, we believe that this application should be dismissed. Thank you.

PN1635

THE DEPUTY PRESIDENT: Thanks, Mr Fisher. Mr Lyons.

PN1636

MR LYONS: If the Commission pleases. Very briefly, your Honour, I seek to respond to a couple of issues. The first is, is what is put by Mr O'Grady in relation to the scope of the agreement, in particular his reliance on clauses 1 and 2 of the agreement. We respectfully submit, your Honour, that in relation to who the agreement covers, your Honour should bear careful attention to the evidence given under cross-examination by Mr Timmins, particularly at paragraph 480, in which he agreed with Mr McGuckin, and described in exactly the same terms as the classification structure, in response to direct questions about what work do these people perform, and is it the work that is set out here in this classification structure.

PN1637

As he went through that classification structure at paragraph 480 and on, he agreed with Mr McGuckin's characterisation of the work, and also agreed that the work that was performed is work that is covered by the certified agreement. He also conceded that there are direct employees of the company, or persons that GW have conceded are direct employees, who perform that work as well. So we say in relation to who is covered by the agreement, your Honour ought prefer the practical evidence of the way the agreement provides at the site, over a convenient argument advanced by counsel that says, well, if you read down the classification structure by reference to the scope clause, there is direct evidence from me about who the employer practically applies the agreement to, and that ought be preferred.

PN1638

Secondly, your Honour, there has been something made in relation to what I might call the 170LT question: that is, whether or not these employees ought to have been given a vote on the agreement. This is not an inquiry into the validity of the decision to certify the agreement in the first place, or whether that decision was validly made.

PN1639

It may well be that in the event your Honour comes with us, it flows from that that certain other things ought, or should have happened at the time the agreement was made. But this is not an inquiry into that process. It requires your Honour to simply examine the particular set of facts that are before you, and not determine whether the decision of the member of the Commission who certified the agreement did so validly exercising his or her powers.

PN1640

Your Honour, in relation to the authority in Tenix, and Automated Meter Readers, we say that that is not authority which is on point directly in relation to the matter that is before you. We say it is simply part of that chain of authorities that in fact goes right back to the decision of Senior Deputy President Hancock in Rail Tram and Bus Union to which I referred, which said that in order to validly exercise your power under either the old 170MH or 170LW, the Commission must first properly determine what is the proper character of the dispute before, and a number of things flow from that.

PN1641

First of all, there must be a real live identifiable dispute about real conditions of employment, with a real employer and real employees. Taken as that way, Tenix is not new authority, neither is even the dissenting decision of SDP Kaufman in relation to Automated Meter Readers. It is simply part of that chain of authorities which says there must be a real and live dispute on the ground. In this case your Honour can be satisfied that there is.

PN1642

Going right back to the original section 99 that was notified at the commencement of these series of proceedings, the live dispute is about the application of the termination provisions to the employees, and the redundancy agreement provisions to the employees, as well as some other provisions, but specifically that as being a key issue in dispute because of the nature of the current circumstance: that is, that business is closing, or likely to close. So your Honour does have that proximity and that relationship between the employment on the ground at Tottenham, and the agreement itself.

PN1643

I also note for the record that both Tenix and Automated Meter Reader Services were decisions which involve the operation of transmission provisions. As such, you had applicant unions seeking what their Honours chose to characterise as binding declarations of right about whether such-and-such an employer was an employer for the purposes of that provision, a transmitted employer.

PN1644

In relation to this case, there is no such argument. There is no live argument between the parties that George Weston Foods is not bound by the agreement. So there is no, for instance, analogy between the decision in Tenix and the current case. The extract that Mr O'Grady has provided you with at paragraph 4 of his supplementary submission, he reproduces paragraphs 44 and 47 of McCallum v Tenix, and that is instructive. In paragraph 44 the Bench said:

PN1645

It is implicit in the reasons of the decision of the majority -

PN1646

and this is in Automated Meter Reading Services -

PN1647

and explicit in Senior Deputy President Kaufman's reasons, that a dispute solely about whether the employer was bound by the agreement cannot be a dispute over the application of the agreement.

PN1648

They go on to say:

PN1649

Because we agree with the Commissioner that the only real issue before him was whether Tenix was bound by the agreement, it cannot be said that the decision on that issue was a necessary preliminary step.

PN1650

That is exactly the reverse of the situation that is before you, your Honour. There is no question the employer is not bound by the agreement, on the first thing. That is conceded, that the agreement was made by George Weston Foods. And, secondly, it is not open, we say, on the facts for your Honour to determine that that is the only issue. There is a live and real issue, a live and real dispute between the employer and the employees that underpins the dispute about the application and operation of the enterprise agreement in the jurisdictional sense.

PN1651

On that basis we say it is not a correct approach to Tenix to say that your Honour is bound to follow that application in relation to the present set of facts. In relation to what Mr Fisher put, he made some submissions as to the value or weight to be placed in relation to evidence, and was critical of the adoption of the - sorry, I withdraw that. And was - or asked your Honour to place very low value on, for example, the surveys that were completed by the union. I note that those were served on him on 10 October of last month.

PN1652

It was open to him - and at that point he was aware the union intended to rely on them. It was open to him to ask that the union produce each of the people who had signed that to give evidence to that effect, and they chose not to do that. It is inappropriate, in our view, to question at the death, the value of those - evidence when it was open for him, as it is in all these proceedings, for him to ask the union to produce the people who had deposed the evidence which is set out. Given that neither of the other parties asked to do that, your Honour is entitled to rely on the material that is provided therein.

PN1653

A similar point was made by Mr O'Grady. He appeared to suggest that some - we should be held to some higher standard of evidence in relation to this matter, because we don't appear as party principal. No authority was advanced for that proposition and we say simply this. That whether we appear as party principal or as agent, each person who appears in this Commission is entitled to be held to exactly the same standard in relation to the production of evidence and the way in which that evidence is dealt. And there doesn't appear to be any authority within the statute for a proposition that different sorts - different approaches to the evidence should apply in different circumstances, depending on the nature of the applicant.

PN1654

I make one final observation about the submissions of Mr Fisher. He placed great reliance on the labour hire agreement that exists between his client and Mr O'Grady's client. With respect, he invites your Honour to fall into the same error which the Full Court of the Federal Court in Damevski criticised the Commission for, which was to look at the relationship between the host and the third party, and use that relationship to indicate that there could not be a relationship between the employee or the independent contractor, and the host employer. That was exactly the error which Marshall J criticised both the Full Bench and the Commission at first instance for. And it is not, with respect, a mistake into which your Honour should be led in considering these facts.

PN1655

There was much debate, backwards and forwards about - and including in the written submissions about the various authorities that go to the existence of employment relationships and independent contractors etcetera. And we say simply this, and so much is clear in the summary positions that are contained in Merkel and Marshall JJ decisions in Damevski. And that is that there is no magic bullet in relation to these. There is no simple test which fits, this is when an employment contract exists and this, when it doesn't.

PN1656

Each of these cases requires the court or tribunal to very carefully consider the particular factual circumstance of the case, as all of them will be different. And so it is, with respect, very difficult to draw direct analogies between sets of facts. However, we say that the cumulative effect of the authorities in relation to this area about contracts of employment, should lead your Honour to find that a contract of employment exists between the people we represent and George Weston Foods. If the Commission pleases.

PN1657

THE DEPUTY PRESIDENT: Good, thank you, Mr Lyons. I intend to reserve my decision, so on that basis I will adjourn.

ADJOURNED INDEFINITELY [3.08pm]