WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2017 WAIRC 00017

SUBMISSIONS
RECEIVED  : FRIDAY, 25 NOVEMBER 2016

DELIVERED : THURSDAY 12 JANUARY 2017

FILE NO. : m 184 of 2015

 CLAIMANT

AND

Group Training South West Inc

first Respondent

Stan Liaros

second Respondent

FILE NO. : m 185 of 2015

CLAIMANT

AND

Group Training South West Inc

first Respondent

Stan Liaros

second Respondent

FILE NO. : m 186 of 2015

CLAIMANT

AND

Group Training South West Inc

first Respondent

Stan Liaros

second Respondent

Catchwords : Alleged contravention of s 44 of the Fair Work Act 2009 – Failure to make redundancy payment as required by s 119 of the Fair Work Act 2009 – Alleged failure to pay redundancy in accordance with contract of employment – Accessorial liability.

Legislation : Fair Work Act 2009

Case(s) referred to
in reasons  : Miller v Minister of Pensions [1947] 2 All ER 372
    Melbourne Stadium Ltd v Sautner [2015] FCAFC 20
    Automatic Fire Sprinklers v Watson (1946) 72 CLR 435                                                          Shop Distributive and Allied Employees Association v Countdown
    Stores and others (1983) 7 IR 273
    Hodgson v Amcor Ltd; Amcor Ltd v Barnes (2012) 264 FLR 1
    Crawford v Steadmark Pty Ltd No.2 [2015] FCCA 2697
    Kavanagh v National Tertiary Education Industry Union (1997) 42
    AILR
    Attwood v Wangka Maya Pilbara Aboriginal Language Centre
    [2010] FMCA 342
    Phillip Martin Andersen v Umbakumba Community Council
    [1995] IRCA 165
    Lee Crane Hire Pty Ltd [2015] FWC 4727
    Maritime Union of Australia v FBIS International Protective
    Services Australia Pty Ltd [2014] FWCFB 6737
    FBIS International Protective Services (Aust) Pty Ltd v Maritime
    Union of Australia [2015] FCAFC 90
    York v Lucas (1985) 158 CLK 661
    CFMEU v Director Fair Work Building Industry Inspectorate
    [2012] 209 FCR 448
    Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014]
    FCA 1365

Result : Claims proven

Representation:

Claimants : Mr G. McCorry as agent.

Respondents : Mr D S Mare as agent.

REASONS FOR DECISION

Introduction

1         Mr Glenn Edward Trigg, Mr Adrian Troy Bestwick and Mr Gregory Paul Tomlinson (the claimants) are former employees of Group Training South West Inc (the first respondent).

2         They allege that their former employer has, in contravention of s 119 of the Fair Work Act 2009 (FW Act), failed to pay them their redundancy entitlements.

3         They also allege that the first respondent’s director, Mr Stan Liaros (Mr Liaros), was ‘involved’ in the first respondent’s contravention and therefore is personally liable (see s 550 of the FW Act).

4         Mr Gregory Paul Tomlinson (Mr Tomlinson) separately alleges that the first respondent has contravened s 323 of the FW Act by failing to pay him his redundancy entitlements as required by the terms of his contract of employment.

5         The claimants seek from the first respondent, the payment of their redundancy entitlements with interest. They also ask the court to penalise the respondents for the contraventions and submit that such penalties be paid to them.

6         The respondents deny that the claimants’ positions were made redundant. They say that the claimants were dismissed for other reasons.

7         Further, and in any event, the respondents contend that the claimants are, pursuant to s 121 of the FW Act, excluded from an entitlement to redundancy payments because they were employed for a continuous period of less than 12 months or alternatively they are, pursuant to s 123 of the FW Act, excluded because they were employed for a specified period of time.

Background facts

8         Save as otherwise indicated, the following background facts are not in dispute.

9         The first respondent carries on the business of supplying apprentices and trainees to businesses in southwestern Australia. Mr Liaros is the first respondent’s chief executive officer.

10      The claimants were appointed by the first respondent as business development managers. Mr Tomlinson commenced on 22 August 2005, Mr Adrian Troy Bestwick (Mr Bestwick) on 10 March 2010 and Mr Glenn Edward Trigg (Mr Trigg) on 15 August 2011. Their core function was to obtain clients for the first respondent’s business.

11      The first respondent’s business activities were funded by money received from the Commonwealth of Australia under contracts that were usually, but not always, renegotiated triennially.

12      The first respondent had held Australian government contracts for 17 years leading up to 27 April 2015. However, on that date, it became aware that the Commonwealth would not be entering into a new contract with it at the expiration of its then current contract. The first respondent informed the claimants and other employees of that development the following day, 28 April 2015.

13      The claimants assert that during the meeting in which they were informed about the loss of the government contract, Mr Liaros, on behalf of the first respondent, informed them that without a Commonwealth contract there would be no work for them to carry out, and that with effect on 30 June 2015 the first respondent would no longer require their jobs to be done by anyone. The respondents deny that was said and point out that the first respondent was required to continue rendering services to the Commonwealth until 30 September 2015.

14      In any event, it is common ground that immediately upon being informed about the loss of the Commonwealth contract, the respondents and each of the claimants set about seeking to find alternate employment for the claimants.

15      On 18 May 2015 the claimants were offered a job by ‘BUSY At Work’ which was one of the providers that was to replace the first respondent in its provision of services to the Commonwealth. After having accepted that employment, the claimants informed their new employer that if ‘BUSY At Work’ were to be co-located with the first respondent, then they would have to reconsider their decision to accept employment with it. Subsequently ‘BUSY At Work’ chose not to co-locate at the first respondent’s premises and the claimants continued in their employment with ‘BUSY At Work’.

16      Mr Liaros was unhappy with what the claimants had done in that regard and was of the view that they had effectively undermined his negotiations with ‘BUSY At Work’ to secure approximately $30,000 per annum income through lease agreements.

17      On 22 May 2015 Mr Liaros met with Mr Tomlinson and Mr Bestwick. Mr Tomlinson and Mr Bestwick testified that during the course of that meeting Mr Liaros was angry, swore at them, raised his voice, and repeatedly thumped his desk before informing them that their employment was terminated. They say that he instructed them to immediately hand back the first respondent’s car keys, office keys, mobile telephone and fuel card. Thereafter he caused them to be escorted from the first respondent’s premises.

18      Mr Liaros admits that he terminated Mr Tomlinson’s and Mr Bestwick’s employment but does not admit that he raised his voice at them, swore at them, or thumped his desk.

19      Immediately after their employment had been terminated Mr Bestwick and Mr Tomlinson telephoned Mr Trigg, who was then in Melbourne, to advise him about what had transpired. They told him that in all probability he would be facing termination upon his return to work the following Monday.

20      When Mr Trigg returned to work on 25 May 2015, he found Ms Stephanie Adlam (Ms Adlam), the first respondent’s manager, waiting for him. She told him that his employment was terminated and she requested that he return to the first respondent its door keys, car keys, fuel card and mobile telephone. She then escorted him inside the premises so that he could clear his desk. At that time Mr Trigg asked Ms Adlam why he had been terminated and she responded by saying that it was because of the co-location issue.

21      Mr Liaros testified that the termination of the claimants’ employment occurred because he had lost confidence in them. He felt hurt and injured by their total disregard/disrespect, not only for him and their long personal association, but also for the effort and time he had spent in brokering meetings and sourcing employment for them.

22      On 27 May 2015 each claimant received a letter confirming the termination of their employment. However the next day they each received an email from Mr Liaros, addressed to them jointly, stating that he was withdrawing the termination of their employment. Mr Liaros testified that he had reflected on his decision to terminate the claimants’ employment and after having taken into account the fact that he had known them for a long time and that the first respondent was starting a new labour hire company, he had decided to offer them re-employment. It suffices to say that the claimants ignored Mr Liaros’ email containing the offer to rescind the termination of their employment.

23      Thereafter the claimants attempted to commence unfair dismissal claims against the first respondent but were precluded from doing so because their claims were lodged out of time. Their application to extend time in that regard was refused.

24      The claimants were never paid any redundancy entitlements and consequently lodged these claims on 13 November 2015.

Issues and Facts Not in Dispute

1. The first respondent is a national systems employer, within the meaning of the FW Act.
2. The first respondent employed:

1. Mr Trigg from 15 August 2011 until 25 May 2015; and
2. Mr Bestwick from 10 March 2010 until 22 May 2015; and
3. Mr Tomlinson from 22 August 2005 until 22 May 2015.
   3. The claimants each signed several contracts of employment and that those contracts were indicated to be for fixed terms usually, but not always, of 12 months’ duration.
   4. Mr Trigg’s final contract was for the period 15 August 2014 to 15 August 2015.
   5. Mr Bestwick’s final contract was for period 30 September 2014 to 30 September 2015.
   6. Mr Tomlinson’s final contract was for period 22 August 2014 to 22 August 2015.
   7. At termination:

1. Mr Trigg earned $1,368 gross per week; and
2. Mr Bestwick earned $1,368 gross per week; and
3. Mr Tomlinson earned $1,482 gross per week.

Issues and Facts in Dispute

1. The date on which the claimants’ employment was terminated.
2. Whether the claimants’ employment was terminated by reasons of redundancy or for some other reason.
3. Whether the claimants’ contracts of employment were fixed term contracts or whether they were ongoing and not limited in duration.
4. Whether, at the time each claimant entered into his first contract of employment, he was informed by Mr Liaros that their employment contract needed to be of limited duration because of the limited duration of the first respondent’s contract with the Commonwealth.
5. Whether the claimants knew they were employed on the basis of a series of separate contracts for specified times.

Issues to be Determined

25      The issues to be determined in these matters are:

1. The date on which the first respondent terminated each claimant’s employment;
2. Whether each claimant was terminated at the first respondent’s initiative because it no longer required the claimant’s job to be done by anyone or for some other reason;
3. Whether each claimant is entitled to a redundancy payment;
4. Whether Mr Tomlinson is separately entitled to a redundancy payment pursuant to the terms of his contract of employment;
5. Whether s 121 and s 123 of the FW Act operate to exclude the claimants from the operation of s 119(1) of the FW Act;
6. In the event that the claimants are found to have a redundancy entitlement under s 119(1) of the FW Act, whether the first respondent’s liability is capable of being absolved or reduced by virtue of s 120 of the FW Act;
7. Whether the first respondent has contravened s 44 and/or s 323 of the FW Act; and
8. In the event that the first respondent is found to have contravened the FW Act, whether Mr Liaros was knowingly concerned in such contravention and was, for the purposes of s 550 of the FW Act, ‘involved’ in the contravention.

Burden of Proof and Standard of Proof

26      Each claimant carries the legal burden of proof for his claim whilst the respondents carry the legal burden of proving those things which they assert.

27      The standard of proof required to discharge the respective burdens of proof is the balance of probabilities. This standard was explained by Lord Denning in Miller v Minister of Pensions [1947] 2 All ER 372 as follows:

That degree is well settled. It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not [374].

28      Accordingly, where in these reasons I say that ‘I am satisfied’ of a fact or matter or otherwise make a finding as to a fact or matter, I am saying ‘I am satisfied on the balance of probabilities’ of that fact or matter. Where I state that ‘I am not satisfied’ of a fact or matter I am saying that ‘I am not satisfied on the balance of probabilities’ of that fact or matter.

Determination of Issues

Termination

29      The claimants allege that on 28 April 2015 Mr Liaros informed them that the first respondent had been unsuccessful in obtaining a new Commonwealth contract and that they would not have jobs as of 30 June 2015.

30      Mr Liaros denies that he told the claimants their jobs would end on 30 June 2015 and that was because the first respondent had ongoing obligations to the Commonwealth until 30 September 2015. Ms Adlam, who was in attendance at the meeting held on 28 April 2015, supports Mr Liaros’ version of events.

31      In resolving that issue I accept the claimants’ evidence that they were told that their jobs were to cease on 30 June 2015. Each claimant gave credible evidence on the issue. They stood firm when challenged asserting an accurate recollection of what they were told. They stridently rejected the respondents’ version of events. In the end result they, in each instance, impressed as witnesses of truth and I believe them. Their evidence is consistent with their subsequent actions and that of Mr Liaros in immediately attempting to find alternate employment. In light of that, it is clear that any ongoing commitment that the first respondent had to the Commonwealth did not include the claimants.

32      I am satisfied that on 28 April 2015 the first respondent gave each claimant notice of termination of employment. Such notice was in each case accepted. I am further satisfied that the claimants’ employment was terminated because the first respondent did not have work for them beyond 30 June 2015. In the circumstances, I find that each claimant was the subject of a genuine redundancy (see s 389(1)(a) of the FW Act).

33      During the period of notices of termination for reasons previously indicated Mr Liaros, on behalf of the first respondent, purported to dismiss the claimants. When that occurred the first respondent paid out the claimants’ period of notice. Mr Liaros’ subsequent attempt to rescind the dismissals was unsuccessful.

34      The respondents deny that the claimants were dismissed on 28 April 2015. Rather they contend that the dismissal of Mr Bestwick and Mr Tomlinson occurred on 22 May 2015 and that of Mr Trigg on 25 May 2015. They say that the dismissals in May 2015 occurred for reasons other than redundancy and therefore do not attract the operation of s 119 of the FW Act.

35      In determining the issue of when termination of employment occurred I observe that a contract of employment cannot be terminated twice (see Melbourne Stadium Ltd v Sautner [2015] FCAFC 20 [112]). Having given the claimants notice of termination of employment on 28 April 2015 the first respondent made an irrevocable decision that the claimants’ employment would end on 30 June 2015. It could not thereafter again terminate their employment. All it could do was to bring the employment relationship to an end.

36      It is important to recognise the distinction between the termination of a contract of employment and the ending of an employment relationship. Latham CJ in Automatic Fire Sprinklers v Watson (1946) 72 CLR 435 said:

An employer terminates the employment of a servant when he dismisses him, though, as I say hereafter such dismissal does not put an end to the contract between the parties [454].

37      The bringing to an end of an employment relationship is different to the bringing to an end to the contract of employment. The acts of Mr Liaros on behalf of the first respondent in May 2015, by which he purported to terminate the claimants’ employment only, had the effect of severing the employment relationship which had continued beyond the termination of the claimants’ employment that had occurred in April 2015. The termination by the first respondent of the employment relationships during the period of notice did not operate to bring to an end the employment contracts themselves. By making payment to the claimants of the balance of their notice periods, the first respondent waived performance by the claimants of any obligations to perform work during the balance of that period. The purported dismissals of the claimants in May 2015 did not affect the validity and consequences of the terminations that had already occurred on 28 April 2015.

38      It follows from what I have said that I find that the claimants’ employment was terminated on 28 April 2015 for reason of genuine redundancy and not in the course of the ordinary and customary turnover of labour. This is not a situation where the claimants were employed on terms which contemplate intermittency in employment (see Shop Distributive and Allied Employees Association v Countdown Stores and others (1983) 7 IR 273 [277] per Fisher J). The terminations occurred at the first respondent’s initiative because the first respondent no longer required the job done by the claimants to be done by anyone (see Hodgson v Amcor Ltd; Amcor Ltd v Barnes (2012) 264 FLR 1 [371]). The claimants therefore are, subject to s 120, s 121 and s 123 of the FW Act, entitled to a redundancy payment in accordance with s 119 of the FW Act.

Was the First Respondent Obliged to Make Redundancy Payments?

39      Whether the claimants have an entitlement to a redundancy payment pursuant to s 119 of the FW Act is subject to s 121 and s 123 of the FW Act.

40      Section 121 of the FW Act provides various exclusions from the obligation to make the redundancy payments otherwise required by s 119 of the FW Act. I observe that the exclusions set out in s 121(1)(b), s 121(2) and s 121(3) of the FW Act do not have application in these matters. The respondents do however rely on the exclusion contained in s 121(1)(a) of the FW Act which provides:

Exclusions from obligation to pay redundancy pay

(1)           Section 119 does not apply to the termination of an employee’s employment if, immediately before the time of the termination, or at the time when the person was given notice of the termination as described in subsection 117(1) (whichever happened first):

(a)           the employee’s period of continuous service with the employer is less than 12 months;

41      As I understand it the respondents submit that at termination each claimant had not performed 12 months of continuous service because, although they had in each instance worked for the first respondent for more than 12 months, each previous period of their employment leading up to their respective last contract were separate periods of employment and therefore did not constitute one continuum. For reasons which I will give later, I reject such contention and find that their employment was continuous service within the meaning of s 22 of the FW Act.

42      The respondents also rely on s 123(1)(a) of the FW Act to resist the claims. Section 123(1)(a) provides:

Limits on scope of this Division

Employees not covered by this Division

(1)      This Division does not apply to any of the following employees:

(a)      an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;

43      The respondents contend that the first respondent was not obliged to make redundancy payments because each claimant was employed on a fixed term contract for the duration of a specified period of time and also because their contract of employment was subject to the continuation of an existing contract between the first respondent and the Commonwealth.

Was Each Claimant’s Employment Continuous?

44      When the claimants’ employment was terminated their written contract of employment indicated that their employment was for a 12 month period commencing and ending in August for Mr Trigg and Mr Tomlinson and commencing and ending in September for Mr Bestwick. Each contract does not contain an express provision stating that the claimant’s employment or continued employment was subject to the first respondent successfully retaining its Commonwealth contract.

45      Notwithstanding that, cl 3(a) of each contract states ‘Schedule 2- Job Title and Salary and Allowances shall be reviewed annually’. Schedule 2 entitled Job Title Wages and Allowances sets out inter alia each claimant’s gross annual salary, annual leave, annual leave loading, long service leave and superannuation entitlements. It also makes provision for the supply of a motor vehicle and mobile telephone. In paragraph 4 it states that the claimant’s ‘classification and wage’ will be reviewed in each July dependent on the following factors:

1. Government funding arrangements;
2. Financial predictions for each reporting year budget;
3. Assessment of the claimant’s performance during the term of the staff employment contract; and
4. The viability of the current project or program.

46      The respondents suggest that paragraph 4 of Schedule 2 of the contract of employment makes it clear that each claimant’s continued employment was subject to the first respondent successfully retaining its Commonwealth contract.

47      The respondents say that notwithstanding Schedule 2 the conditional nature of the claimants’ employment was made well known to them when they each commenced. Mr Liaros asserts that upon commencement he clearly explained to each of them that their contract of employment was to be of limited duration because of the inherent uncertainty surrounding the continuation of the Government contract. Given the significance of that, it begs the question as to why such a term was not clearly expressed in each claimant’s substantive written contract of employment.

48      The claimants deny that Mr Liaros informed them at commencement that because of the inherent uncertainty surrounding the continuation of the Government contract their employment was to be of limited duration. The claimants gave credible and acceptable evidence about the issue and I generally prefer their evidence to that of Mr Liaros. Mr Trigg and Mr Tomlinson were particularly impressive. Given the importance of the moment for him Mr Tomlinson specifically recalls his first conversation with Mr Liaros. He positively asserts that Mr Liaros did not state what he alleges. Similarly, Mr Trigg appears to have a clear recollection of the circumstances of his appointment. He likewise denies such statement. Mr Liaros’ evidence concerning what he told the claimants is in each instance nothing more than a bare assertion lacking in particularity. In the circumstances I cannot be satisfied that Mr Liaros made the statements that he asserts.

49      The respondents contend that it was expressly agreed that the claimants’ contract of employment would commence and end on a specified date. They say that it follows that the duration of the claimants’ contracts of employment were, as they were aware, for a specified period of time, as had been agreed.

50      The respondents rely on Crawford v Steadmark Pty Ltd No.2 [2015] FCCA 2697 in which the Federal Circuit Court of Australia said in addressing the question of whether an employee was employed on a contract for a specific period of time:

The applicant did not deny signing the contract and doing so without duress or coercion. By the terms of the contract the parties jointly signed, they created a particular set of legal rights and responsibilities. One of those was that the legal relationship would cease on 25 May 2014. There is no evidence that there was a commonly shared objective view held by the applicant and the respondent that the contract meant something else than what it stated [78].

The applicant’s case appeared to be predicated on the proposition that there was a contractual, or other obligation, to renew (or rollover) the contract. No such obligation was established [79].

51      In Crawford O’Sullivan J referred to the decision of Attwood v Wangka Maya Pilbara Aboriginal Language Centre [2010] FMCA 342 in which Lucev FM reviewed relevant authorities with respect to the issue of whether the applicant had been employed for a specified period. After having reviewed those authorities his Honour concluded that whether or not a contract which is indicated to be for a specific period is in fact for a specified period will be dependent upon its contextual factual circumstances.

52      The facts in Attwood indicated that the contract was for a specified period. In that regard his Honour observed that:

99. Ms Haintz’s evidence makes it manifest that this was not a contract automatically rolled over or continued as a formality, but one (as with others at Wangka Maya) which had to be assessed on 30 June each year from a funding perspective in order to determine whether it would continue or not.

100. The 2007 Employment Agreement also provided that it was renewable, at its conclusion, “dependant on funding and performance”. The evidence here shows that performance was reviewed, and that a decision to make an offer which concluded in the 2007 Employment Agreement was a consequence of that review, as reflected in the Staff Appraisal Form.

101. The position with respect to review of funding and performance outlined immediately above means that Ms Attwood’s contract and employment circumstances were manifestly different to those in D’Lima and Kavanagh, and those cases are therefore distinguishable on their facts. Those cases are further distinguishable by reason of the fact that in Ms Attwood’s case the three employment agreements or contracts of employment related to two different positions, and of the two contracts for the Link Up co-ordinator’s position the first was not a fixed term contract because it was subject to termination without cause at the conclusion of the three month probationary period.

53      One of the authorities that his Honour referred to in Attwood was Kavanagh v National Tertiary Education Industry Union (1997) 42 AILR 3 – 574. In that matter the applicant’s employment of 17 years was governed by a series of fixed term contracts each consistent with an understanding that renewal of the contract would be automatic and a mere formality. In those circumstances it was found that there was, in substance, a continuing employment relationship and the contract was not for a specified period.

54      In these matters each claimant’s written employment agreement did not state that whether the contract was renewable at its conclusion was dependant on the first respondent’s ability to retain the Commonwealth contract. It is the case however that Schedule 2 to each claimant’s contract provided that their ‘classification and wage’ was to be reviewed in July each year. Such review was subject to various factors including government funding. I observe that such provision does not relate to the continuation of employment but rather remuneration. Further there is no evidence which suggests that there was an annual assessment of the funding situation prior to each new contract being entered into. Rather, the contracts were automatically rolled over or otherwise continued as a formality. In those circumstances the facts in these matters are more in keeping with Kavanagh than Attwood.

55      To support their contention that the contracts entered into by the claimants were for a fixed term, the respondents rely on cl 3(a) of each claimant’s final contract read in conjunction with the schedules thereto. In each case cl 3(a) of the contract of employment provided:

3. TERM

(a) The duration of this Agreement shall relate to the contract of employment of the employee mentioned in Schedule 1 “Parties” of this agreement. The term of this Agreement shall be 1 year and will expire on ………. Schedule 2 – Job Title and Salary and Allowances shall be reviewed annually.

56      The words ‘shall relate to the contract of employment’ in cl 3(a) of the contract of employment makes it clear that the agreement is distinct from the contract of employment to which it relates. The former expression relates to the period during which the terms of the agreement will apply, whilst the latter denotes the relationship which applies. Perhaps most importantly the final sentence is inconsistent with the employment relationship itself, subsisting only for the period of a year.

57      The conclusion that the employment relationships did not end on the expiry date of the contract is also evidenced by the fact that each subsequent year’s contract of employment was not usually signed on the day of commencement, but rather much later. It is the case that the claimants continued to work for the first respondent in the period between the expiration of the contract and the new contract being signed which was sometimes several months. There was no break or interruption to their employment as would be expected in the event of separate and distinct engagements.

58      Further, the other terms of the written contract in each instance are inconsistent with the employment being of only one year’s duration.

59      For example, cl 5.1(c) of the contract provides for periods of notice, depending upon the number of years of service, which would be redundant if the employment came to an end at the conclusion of the one-year term. Similarly, cl 7.1(c) of the contract requires annual leave to be taken within one year of it falling due and cl 7.4 of the contract provides for long service leave. Clause 14 of the contract provides for redundancy payments dependant on the number of years of service. Further the first sentence of Schedule 2 to the contract appears to be internally inconsistent in that cl 4 of the contract makes it clear that classifications and wages are to be reviewed annually, which would be wholly otiose if the employment was to last only one year.

Were the claimants employed for a specified period or season?

60      In order for s 123 of the FW Act to operate with respect to the claimants it will be necessary to find that in each case that the claimant was employed for a specified period of time, for a specified task, or for the duration of a specified season.

61      The Industrial Court of Australia considered the meaning of the expression ‘employed for a specified period of time’ in Phillip Martin Andersen v Umbakumba Community Council [1995] IRCA 165, von Doussa J said:

In the expression, "specified" is the past participle of the verb "to specify". The ordinary meaning in the English language of "to specify" is to mention, speak of, or name (something) definitely or explicitly; to set down or state categorically or particularly; to relate in detail: Shorter Oxford English Dictionary, 3rd Edition. In the context of Art. 2, para. 2(a) of the Termination of Employment Convention "specified" identifies a period of time or a task the scope and parameters of which are stated definitely. A "specified period of time" is a period of time that has certainty about it.

 A contract of employment for a specified period of time would be one where the time of commencement and the time of completion are unambiguously identified by a term of the contract, either by the contract stating definite dates, or by stating the time or criterion by which one or other end of the period of time is fixed, and by stating the duration of the contract of employment. As the period of time is defined in this way, it is apt to refer to a contract of employment for a specified period of time as a contract of employment for a fixed term, although this is not the description used in the Regulation.

A contract of employment to run throughout a nominated number of days, weeks, or years would be a contract of employment for a specified period of time. If the terms of the contract of employment, instead of identifying in this manner the period of time during which it is to run, provides that it is to run until some future event, the timing of the happening of which is uncertain when the contract is made, the contract will be for an indeterminate period of time.

62      At the end of his judgment his Honour said:

Since preparing these reasons, I have read the decision of Northrop J in another matter in the Darwin Registry, Cooper v Darwin Rugby League Inc (unreported, Industrial Relations Court, 20 September 1994). His Honour there concluded that a contract of employment to run for 3 years but subject to the right of either party to terminate the contract on giving one months notice was not a contract of employment for a specified period of time within the meaning of reg 30B(1)(a).

63      The decisions of von Doussa and Northrop JJ are authority for the proposition that a contract terminable on notice is not a contract of employment for a specified period of time. In that regard the respondents submit that the applicability of the decision of von Doussa J in Andersen is drawn into question by what was said at paragraph 1532 of the explanatory memorandum for the Fair Work Bill 2009 which states:

…paragraph 386(2)(a) reflects the common law position that termination in these circumstances would not be a dismissal. The fact that an employment contract may allow for earlier termination would not alter the application of this provision as the employment has terminated at the end of the period, task or season. However, if a person engaged on this sort of contract is terminated prior to the end time specified in the contract, they may seek an unfair dismissal remedy if they satisfy the other requirements.

64      Relevantly, s 386 of the FW Act provides:

386 Meaning of dismissed

(1)               A person has been dismissed if:

(a)               the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b)               the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2)               However, a person has not been dismissed if:

(a)               the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b)               the person was an employee:

(i)                 to whom a training arrangement applied; and

(ii)               whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c)                the person was demoted in employment but:

(i)                 the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii)               he or she remains employed with the employer that effected the demotion.

(3)               Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

65      I observe, however that what paragraph 1532 of the explanatory memorandum attributes to s 386(2)(a) of the FW Act is not consistent with what it says. The language of s 386(2)(a) of the FW Act is unambiguous and it is unnecessary to resort to extrinsic material such as the explanatory memorandum. The introduction of s 386(2)(a) of the FW Act has not affected what was said in Andersen. No valid reason has been advanced as to why Andersen should not be followed.

66      Whether or not a contract of employment is for a specified period of time is a mixed question of fact and law which can only be determined having regard to its particular factual circumstance. The written contract of employment, as alleged by the respondents, were not contracts for a specified period of time, a specified task, or for the duration of a specified season. The claimants’ employment was, in each instance, open ended and was not subject to parameters conclusively set. Even if it could be said that the contracts were to run until a future event, that is until such time as the first respondent’s contract with the Commonwealth ended, then it remains the case that the timing of the happening of such event, which was uncertain at the time the contract was made, rendered the contract, because of uncertainty, to be one for an indeterminate period of time.

67      Further and in any event, the contracts that the claimants entered into were not for a specified period of time because the employer-employee relationships they governed were terminable on notice (see cl 5.1(c) of the contract).

68      I conclude that s 123(1) of the FW Act does not assist the respondents in resisting the claims.

Conclusion

69      I find that the first respondent failed to pay each claimant a redundancy entitlement. Such payment was required s 119 of the FW Act. The first respondent’s failure in that regard constitutes a breach of a National Employment Standard and is in contravention of s 44 of the FW Act.

Section 120 of the FW Act

70      In their statement of defence at paragraph 7.2, the respondents plead:

…should the Court find that the Claimant was entitled to any redundancy pay, then the Respondents state that the Respondents obtained acceptable alternative employment for the Claimant and as a result thereof, the Claimant is not entitled to redundancy payment. The Respondents would then apply that the matter be postponed pending the Respondents’ application to the Fair Work Commission in terms of section 120 of the Fair Work Act.

71      Section 120 of the FW Act provides:

Variation of redundancy pay for other employment or incapacity to pay

 (1) This section applies if:

(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and

  (b) the employer:

   (i) obtains other acceptable employment for the employee; or

   (ii) cannot pay the amount.

(2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.

(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.

72      The precondition required for the application of s 120 of the FW Act is the existence of a liability to make a redundancy payment. In Lee Crane Hire Pty Ltd [2015] FWC 4727 Commissioner Spencer held:

…that an entitlement to redundancy pay must exist, in order for the Commission to consider varying that redundancy pay entitlement. Where there is no entitlement under s 119 there can be no order to reduce the “entitlement” pursuant to s 120 [27].

73      Given my finding that each claimant has, pursuant to s 119 of the FW Act an entitlement to a redundancy payment, it will be incumbent that the respondents demonstrate that the first respondent is likely to succeed with respect to an application made pursuant to s 120(1)(b)(i) of the FW Act.

74      The respondents assert that they ‘obtained’ acceptable employment for the claimants. In that regard they suggest that the uncontested evidence of Mr Warren Cluff, chief operations officer of the first respondent, and Ms Adlam, indicate the lengths to which the respondents went in order to obtain alternate employment for the claimants. They particularly rely on Ms Adlam evidence in that regard. Ms Adlam testified that on 6 May 2015 she attended a meeting held between Mr Liaros and Mr Rod McShannon (Mr McShannon), senior manager of ‘BUSY At Work’. At that meeting, Mr Liaros discussed in detail the claimants’ salary conditions (12% superannuation, 5 weeks of annual leave and 17% leave loading). She said that Mr Liaros requested Mr McShannon to make an offer to him to secure all three claimants as employees. Mr McShannon expressed his reservations with regard to employing all three claimants as a team and felt that their conditions of employment were too generous. Notwithstanding that they were able to convince Mr McShannon to take the claimants on as a team given that they had built a strong relationship with employers in the south west region. Mr McShannon was also informed that the first respondent’s ‘market share and high KPI’s’ were as a result of the expertise of the claimants.

75      The claimants say that it was their own endeavours rather than that of the respondents that led to ‘BUSY At Work’ employing them. They say that rather than assisting them in their endeavours to find alternate acceptable employment, that the respondents worked against their interests by disclosing to prospective employers including ‘BUSY At Work’ their then current terms and conditions of employment.

76      The question to be determined is whether, on the available evidence, it is possible to conclude that the respondents obtained acceptable employment for the claimants. The meaning of ‘obtain’ was discussed by the Full Bench of the Australian Industrial Relations Commission in Australian Clothing Trades Award 1982(1) (1990) 140 IR 123 in which it said:

…the intention is not to impose an absolute test on the employer’s ability to “obtain” alternative employment but rather it refers to action which causes acceptable alternative employment to become available to the redundant employee. The employer must be a strong, moving force towards the creation of the available opportunity (128).

77      In Maritime Union of Australia v FBIS International Protective Services Australia Pty Ltd [2014] FWCFB 6737 the Full Bench of the Fair Work Commission made it clear:

…the limited actions of the Respondent, which did no more than establish contact between its employees and ACG, with the effect that employees were able to participate in the recruitment processes of ACG falls well short of action which “causes acceptable alternative employment to become available to the redundant employee” and the Respondent was not a “strong, moving force towards the creation of the available opportunity” [54].

78      The Full Court of the Federal Court of Australia went further when it said in FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia [2015] FCAFC 90 [22] that an employer must show that it ‘procured’ the offers of employment and that it is not sufficient to just facilitate the opportunity for the employees to apply for employment.

79      In the Shorter Oxford English Dictionary ‘procure’ is defined to mean:

… to bring about, cause, effect, produce; and

… to prevail upon, induce and persuade (a person) to do something.

80      The evidence of the claimants on the issue is consistent. They assert that their own endeavours and negotiations resulted in them securing alternative acceptable employment. They say that the respondents had little to do with their gaining alternate employment. The claimant’s evidence, which is accepted, indicates that they undertook various initiatives and met with prospective employers including ‘BUSY At Work’ in order to secure alternate acceptable employment.

81      Although the respondents contend that it was the joint efforts of Ms Adlam and Mr Liaros that ‘convinced’ ‘BUSY At Work’ to offer the claimants employment, there is little or no evidence to support that. No one from ‘BUSY At Work’ was called to give evidence as to why it employed the claimants. The respondents could have called a representative of ‘BUSY At Work’ to testify about the issue, but did not do so. In the circumstances, ‘BUSY At Work’s’ reasons for employing the claimants is unknown. The respondents’ impressions and conclusions as to why ‘BUSY At Work’ employed the claimants are nothing more than self-serving conjecture.

82      The respondents’ contentions that it obtained acceptable employment are not maintainable. It follows that the claims should not be adjourned in order to facilitate the respondents making an s 120 of the FW Act application.

Mr Tomlinson’s Claim Under Section 323 of the FW Act

83      Clause 14 of Mr Tomlinson’s written contract of employment stated that he was entitled to a redundancy payment of three weeks’ wages per year of service.

84      Section 323 of the FW Act provides that:

(1)      An employer must pay an employee amounts payable to the employee in relation to the performance of work:

(a)           in full (except as provided by section 324); and

(b)           in money by one, or a combination, of the methods referred to in subsection (2); and

(c)           at least monthly.

85      On termination Mr Tomlinson had completed more than nine years, but less than 10 years, of continuous employment with the first respondent. Consequently, he was in accordance with cl 14 of his contract entitled to a redundancy payment of three weeks’ wages for each year of service, totalling 27 weeks’ redundancy pay. That was payable before the end of July 2015.

86      The Industrial Magistrates Court has jurisdiction to order payment of Mr Tomlinson’s contractual redundancy amount if it is satisfied that s 323 of the FW Act has been contravened because:

(a)               it is an amount required to be paid in full and no later than one month after becoming due (s 323(1) of the FW Act); and

(b)               the section is a civil remedy provision.

87      I am satisfied that the redundancy payment due to Mr Tomlinson, pursuant to cl 14 of his contract of employment, should have been paid in full by the end of July 2015, but was not paid. It follows there has been a contravention of s 323 of the FW Act.

Accessorial Liability

88      The claimants assert that Mr Liaros was ‘involved’ in the first respondent’s contravention of s 44 and s 323 of the FW Act because he was ‘knowingly concerned’ in the first respondent’s admitted failure to pay the claimants their redundancy entitlements and accordingly is, pursuant to s 550 of the FW Act, taken to have contravened s 44 and s 323 of the FW Act.

89      Mr Liaros submits that in order for the court to find that he was an accessory the claimants must prove the following:

1. that he knew that his actions on 28 April 2015 constituted a dismissal for the purposes of s 119(1)(a) of the FW Act;
2. that he knew the claimants were employed on ‘outer limit contracts’, that is, that the contracts contained ‘no fault’ notice periods; and
3. that he knew that in the calculation of each claimant’s period of employment that their employment was continuous.

90      To be an accessory, Mr Liaros had to have actual knowledge of the essential elements constituting the contraventions (see York v Lucas (1985) 158 CLK 661). He submits that neither he nor the first respondent intentionally participated in the contravention of the FW Act.

91      In CFMEU v Director Fair Work Building Industry Inspectorate (2012) 209 FCR 448 the Federal Court said:

The relevant principle to be derived from Giogianni; Yorke v Lucas… is that the putative accessory must intentionally participate in the contravention and to form the requisite intent he must have knowledge of the essential matters which go to make up the contravention, whether or not he knows that those matters amount to a contravention [38].

92      With respect to this issue the evidentiary material before me permits the following findings:

1. Mr Liaros is the chief executive officer of the first respondent (see paragraph 10 of the statement of defence and paragraph 2 of Mr Liaros’ witness statement dated 4 November 2016).
2. Mr Liaros made the decision to terminate the claimants’ employment (see claimants’ witness statements, paragraphs 6 – 10 in each instance).
3. Mr Liaros knew, given that the contracts of employment were rolled over without formality that, in substance, the claimants’ contract of employment constituted a continuing employment relationship and not for a specified period. The ongoing nature of employment was manifest from the provisions of contracts, including that it contained a no fault notice period.
4. Mr Liaros knew, given the length of each claimant’s employment and the informality of the roll-over of each contract of employment that their employment was in actuality continuous notwithstanding the notional commencement and end dates of their contracts of employment.
5. Mr Liaros made the decision to terminate the claimants’ employment because the first respondent had not been successful in obtaining an ongoing contract with the Commonwealth (see Mr Liaros’ witness statement at paragraph 5.1 in conjunction with the claimant’s witness statements at paragraphs 7 – 10).
6. Mr Liaros told the claimants that the lack of funding was the reason for the termination of their employment (see claimants witness statements at paragraph 7).
7. Mr Liaros knew that a redundancy situation arose if the first respondent no longer required the claimants’ positions (see annexure SL14 to Mr Liaros’ witness statement dated 4 November 2016).
8. Mr Liaros knew that the claimants were entitled to redundancy payments if they were made redundant (see annexure SL14 of Mr Liaros’ witness statement dated 4 November 2016).
9. Mr Liaros made the decision not to pay the claimants redundancy payments (see annexure SL16 and SL14 of Mr Liaros’ witness statement dated 4 November 2016).

93      To be knowingly concerned in the contravention, Mr Liaros must have engaged in conduct which implicates or involves him in the contravention so that there is a practical connection between the person and the contravention (per White J in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 [178]).

94      I am satisfied for the reasons stated above that Mr Liaros knew that the first respondent was obliged to make the redundancy payments to the claimants but decided on behalf of the first respondent not to make such payments. Mr Liaros had the actual knowledge of the essential elements constituting the contraventions. He was knowingly concerned and therefore involved in the contraventions.

95      I find that Mr Liaros was engaged in conduct which resulted in the contravention of s 44 and s 323 of the FW Act and is therefore taken by s 550 of the FW Act to have contravened the FW Act.

Orders

96      I will now hear the parties as to the orders to be made.

G. Cicchini

INDUSTRIAL MAGISTRATE