PR926485 PR926485 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170CE application for relief re termination of employment Glenn Holland and Elgas Limited (U2002/4844) COMMISSIONER TOLLEY MELBOURNE, 9 JANUARY 2003 Alleged unlawful termination [1] Application for relief re termination of employment pursuant to s.170CE of the Workplace Relations Act 1996 (the Act), by Glenn Ashley Holland against Elgas Limited. [2] This decision is about whether or not the applicant Glenn Holland, had an employment relationship with Elgas Limited, the respondent. [3] The respondent contends that the application is beyond the jurisdiction of the Commission because of the respondents alleged, "contractor" , status. [4] The applicants contention is that there is an employment relationship between him and the respondent which, if not of a fulltime nature, is at least that of a long term permanent casual. [5] The respondent contends that if an employment relationship is found to exist, then that relationship is between the applicant and a company known as, `Driverlink'. [6] Driverlink is a successor company to Trans Corp, a company which it is claimed reached a contractual arrangement with Elgas during February 1999, to supply labour as required by Elgas. [7] Mr Garry Salt was the principle officer of Trans Corp and is the principle officer of Driverlink. [8] Mr Holland, the applicant in this matter, began work with Elgas in about April 1997 at its Dandenong Victoria site. In August 1997 he entered into a, "Limited Contract Agreement to Load Elgas Vehicles". The contractual Agreement is signed by the applicant and by Mr Dhar on behalf of the respondent. The document is attached to this decision. (Attachment 1) [9] The applicant's initial `work', (April to August 1997), at the Dandenong site was casual in nature and not subject to any agreements which could be produced. [10] The evidence before the Commission is that the applicants `work' of loading vehicles, driving delivery vehicles and other associated duties continued at the Dandenong site until at least July 2002. There is no disagreement between the parties about the nature of the `work'. [11] The applicant says in his witness statement that during February 1999 he was told by Mr Gary Gordon, the then Transport Manager, (currently Regional Operations Manager), of the respondent, that, "he was to be put through an agency." [12] The applicant did not raise any objection to this arrangement. [13] The agency was Trans Corp, which later became Driverlink. [14] The applicants work arrangements did not materially change during these company to agency movements. [15] Prior to Trans Corp's involvement, the applicant supplied invoices to Elgas detailing payment claims for work performed as required by the Contractual Agreement of August 1997 (attachment 1). He continued to send invoices directly to the respondent after the Trans Corp/Driverlink agency involvement. [16] The invoices, after checking and processing by the respondent, were forwarded to Trans Corp/Driverlink for processing of payments into the applicants account, (VTU Credit Union). [17] The applicant did complete a sub-contractor information sheet with Trans Corp. (Attachment 2), which was of limited assistance to the Commission. [18] The applicant stated in his witness statement that after the agency arrangements were put into place: viz " I continued to receive all my work instructions from the same Elgas supervisors I had always dealt with. The transport supervisor at Elgas continued to tell me before the end of each week what (work) I had to do for the next week." [19] Mr Gordon of Elgas, when being examined by Mr Tasker, agreed with this statement. [20] During his examination in chief, Mr Gordon referred to the applicant as an employee on several occasions. [21] He also admitted in answer to a question from Mr Duffin, that he was not aware of any contractual agreements in place between the applicant and Trans Corp/Driverlink, nor was he aware of the work status of any of the agency workers used by Elgas, vis a vis, their employment(?) relationship with the agency. [22] The applicant, in his witness statement stated that he was referred to as "casual driver" by both Mr Gordon and Ms Buci, on most occasions. [23] Mr Gordon admitted that this could be correct, although he said the correct term should have been, "casual contract driver". [24] The applicant further stated that he received bonuses and gift vouchers from the respondent on the same basis as all others working for Elgas and attended the annual retail conferences of the respondent. [25] These conferences were attended by Elgas personnel from all over Australia. The full cost of these conferences, including accommodation, food, travel and other expenses was borne by the respondent, as well as wages. [26] There was no dispute about this statement by the respondents witness. [27] The applicant stated that when he was told that there would be a reduction in his work, the applicant also said in his witness statement that viz " It seemed clear to me that there were three groups of workers used by Elgas. There were company drivers, drivers such as myself who were referred to as casual drivers, and there were contractors who supplied their own trucks and equipment." [ 28 ] Mr Gordon, in answer to a question from Mr Tasker, said that in the transport area there are company drivers who are permanent employees of the company, there are contractors who supply their own vehicle and there are contracted personnel which are supplied through a third party group such as Driverlink. [29] Surprisingly, Mr Gordon only referred to the driving operation and did not include the filling area where the applicant worked for a lengthy period. [30] The applicants witness statement at paragraph 29 states: " At the conclusion of the meeting with Gary Gordon, I was told that Elgas need(ed) to find more work for a permanent employee named Phil Perry, because permanent employees are guaranteed 40 hours pay per week. Gary told me that he would be giving Perry my regular run." [31] Mr Gordon's recollection of this statement did not differ materially. [32] The respondent further stated that he asked Mr Holland what work he would do and was told he would be helping whoever needed a hand. Mr Holland agreed that this was correct. [33] He then stated that he asked why he was losing his run when he had been working for Elgas longer than any other casuals, and was told that it was because the others were available to work Saturdays and he hadn't worked many Saturdays of late. [34] Mr Gordon empathically denies that he made that statement. [35] Mr Holland also takes issue with the respondents claim that when he was asked to work on a Saturday and rejected that request that he had not been asked to work by Elgas since, Mr Gordon says, that the applicant was offered work on numerous occasions after he rejected the Saturday work. [36] Mr Gordon also clearly stated that in his evidence, that the applicant was never dismissed, and that as far as the company was concerned, he was still a contractor working for Driverlink, that would be available for work when the company had work to offer him, and there was no discussion whatsoever that the applicant was dismissed. [37] Mr Duffin in cross-examining Mr Gordon raised the issue of different signatures on the Elgas document, (attachment 1), and the PPS document which is also purported to be signed by the applicant. Mr Gordon agreed they were different. [38] The witness was also asked about the statement in attachment 1 where it says: "The flat rate will remain fixed. An employee shall remain constant until September 1997. Duties performed after this date will be subject to agreement reached between the parties." [39] The question asked was, "do you have another agreement to provide for something after that date?" The witness answered, "No." [40] The witness was further questioned about the company policies, ie: The requirement to wear company uniforms, Vehicles that must be marked with company insignia, The fact that the respondent did not provide his own vehicle, however contractors provide their own vehicle, Equal Opportunity Policy O H & S Policy and whether the respondent was obliged to abide by all the policies. [41] The witness answered in the affirmative. [42] Mr Tasker in summarizing the respondent's arguments, said that the Commission had no jurisdiction in the application by Mr Holland. He was a contractor at all times since the introduction of the limited contract agreement during August 1997, and that subsequent to that agreement, was engaged under a form of arrangement via Trans Corp which became Driverlink. That the applicant knew about the scheme of arrangement, as he was informed by Mr Gordon on behalf of the company, and did not object to the scheme of arrangement. [43] The alleged agreement to the scheme, is alleged to have been proven by the applicant completing and signing a Trans Corp sub-contractor sheet, (attachment 2), and that all of the evidence and submissions made on behalf of the respondent, show that no employer/employee relationship exists or ever existed between the respondent, Elgas Limited and the applicant, Glenn Holland. [44] Mr Tasker referred the Commission to the decision of the High Court of Australia in Hollis and VABU Pty Limited, (207CLR21), referred to colloquially as `VABU', as well as other decisions of Superior Courts about the employer/employee relationship when compared to contractors. [45] Mr Duffin in summarizing for the applicant said, that the "Limited Contractual Agreement' expired during September 1997. It was not replaced with another agreement and the said agreement was limited in its capacity. The flat rate offered in the agreement is a rate which is made up after including provision for Annual Leave, Sick Leave, Penalty Loadings and Superannuation, and refers to employees as well as contractors. [46] Further, that the "Limited Contractual Agreement " was about loading bobtail vehicles until September 1997. After September 1997, the applicant's duties were driving vehicles delivering Elgas products, in a company owned vehicle. [47] Mr Duffin strongly contended that no contract existed between the applicant and the respondent and that the scheme of arrangement between the respondent and Trans Corp/Driverlink was one of convenience at best, or a sham at least. [48] He further said, that although the applicant was still in possession of a pass to access the respondent's premises, it was a fact that the job has ceased. [49] The applicant disputes that he has been offered ongoing work and no evidence has been brought by the respondent to support this claim. [50] The work disappeared when it was split between Mr Perry and Mr Burns to accommodate Mr Perry on his return from long leave. [51] Previous to this decision by the respondent, the applicant was working a regular set run for a period in excess of 30 months. [52] Mr Duffin, in answer to a question from the Commission about the applicant's retention of the gate pass, said that the applicant had been terminated from his position where he was a regular and systematic casual - permanent casual. That position is gone. [53] He is offered an alternative which is; "you can get whatever work we dish up to you. It may vary from 8 hours a week to 3 days a week and that is the change." He had a position which was a regular casual position which existed for in excess of 2 years. [54] Mr Duffin also referred to the decision of the High Court in "VABU" in particular where it says in paragraph 58 "It is really quite irrelevant what the parties themselves characterise their relationship as" [55] The evidence of Mr Holland covered the pertinent issues of the relationship with the respondent. [56] The cross examination of the witness by Mr Tasker did not advance the company's argument; neither did it detract in any way from Mr Duffin's submission. In fact, it only served to confirm to the Commission that by performing work outside of Elgas, when not required for duties by the respondent, he, (the applicant), worked in the same fashion as persons characterised as casuals do. DECISION & REASONS FOR DECISION 1. The evidence put by the parties in this matter does, in the Commissions opinion, prove that the applicant was in an employee/employer relationship with the respondent company. 2. The Commission has reached this decision for the following reasons: [1] The applicant was continually, both verbally and in writing, referred to as an employee by the respondent's supervisory officers. [2] The so called, "Limited Contractual Agreement" , contained an acknowledgment that the flat or all up rate, was a mix of wages plus additions to compensate for Annual Leave, Sick Leave, Penalty Allowance and Superannuation - a normal feature of payment to persons described as casuals. [3] The respondent exercised total control over the applicant as to training, uniforms, requirement to abide by company policies, and the requirement to give prior notice of any inability to attend to perform work. [4] The supply of equipment including a truck for deliveries of company product by the respondent company - not by the applicant. [5] The requirement that claims for payment as compensation for work performed be tendered to the respondent. [6] The fact that the "Limited Contractual Agreement" , (attachment 1), was not replaced by another agreement and the applicant was not told that his work had finished with the respondent, when the said document had expired. [7] The scheme of arrangement between the respondent and Trans Corp, which transmitted to Driverlink, was a sham arrangement, designed to avoid the employment responsibilities of the respondent by moving money around a triangle. Money which was at all times sourced from the respondent. [8] The Commission is at this time reminded of the words of Gray J. of the Federal Court of Australia in "Re Porter" (1989) 34 IR at 184 "the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck." [9] The respondent in this matter attempted to turn the rooster into a duck with a sham arrangement which was foisted on the applicant, a person who had no bargaining power and no involvement in the setting up of the scheme. [10] The respondent placed some reliance on the Trans Corp sub contractor information sheet signed by the applicant to support its case. This document was not a document which contained an offer or had an acceptance clause. It was merely an information sheet, and further, the applicant did not at any time enter into a contractual relationship with Trans Corp or its successor, Driverlink, as no contract exists. [11] Trans Corp/Driverlink were not at any time in either a contractual or employment arrangement with the applicant. They were at best "a post box". 3. The Commission has already stated its decision that an employment relationship existed between Glenn Holland and Elgas Limited. 4. The employment relationship is properly characterised that of a "permanent casual" and this has been the relationship since Mr Holland first performed work for Elgas Limited during early 1997. DECISION [1] The application made pursuant to s.170CE of the Act by Glenn Holland for relief re termination of employment against Elgas Limited is within the jurisdiction of the Commission. BY THE COMMISSION: COMMISSIONER Appearances: R Tasker Agent for Elgas Limited L Duffin Federal Industrial Officer, TWUA for applicant Printed by authority of the Commonwealth Government Printer