Craig Geoffrey Fox v Programmed Integrated Workforce Ltd

Acts Interpretation Act 1954, s 14A

Industrial Conciliation and Arbitration Acts Amendment Acts, 1932 to 1952, s 10A and s 10B

Industrial Conciliation and Arbitration Acts Amendment Act of 1952, s 6

Industrial Conciliation and Arbitration Act 1961, s 5 and s 17

Industrial Relations Act 2016, s 31, s 95, s 102, s 103, s 131, s 132, s 341, s 477 and s 899

Workplace Relations Act 1996 (Cth), s 149 and s 170MB

Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia and Anor [1999] SASC 300; (1999) SASR 240

Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Wilsons Parking Australia 1992 Pty Ltd [2002] ICQ 49; (2002) 171 QGIG 323

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384

Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169

Cushman & Wakefield (NSW) Pty Ltd v Farrell [2017] NSWCA 24

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503

Melanie Saxby, Department of Justice and Attorney-General v Southern Down Security Pty Ltd [2010] QIRC 40

Melrose Farm Pty Ltd t/as Milesaway Tours v Milward [2008] WASCA 175; (2008) 175 IR 455

Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104

Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303

PP Consultants Pty Ltd v Finance Sector Union of Australia [2000] HCA 59; (2000) 201 CLR 648

Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Ryde-Eastwood Leagues Club Ltd v Taylor [1994] NSWIRComm 112; (1994) 56 IR 385

Saville v Department of Corrective Services [2006] QIRC 126; (2006) 183 QGIG 787

Smith v Director-General of School Education [1993] NSWIRC 57; [1993] NSWIRComm 134; (1993) 31 NSWLR 349

J. Waller v Arundel Hills Country Club (Gold Coast) Pty Ltd (1998) 158 QGIG 469

WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 309 IR 89

Mr C. Fox, the Applicant with Mr J. Gibbons of the State of Queensland (Office of Industrial Relations).

• [1] From 3 October 2011, Mr Andrew Haining was employed on a casual basis by Programmed Integrated Workforce Ltd ('PIW'). Until 2 August 2019, PIW, in accordance with a labour hire contract it had with the Brisbane City Council ('the Council'), on‑hired Mr Haining to perform work for the Council as a gardener/general hand.

• [2] In July 2019, PIW was unsuccessful in re-tendering for the labour hire contract it had with the Council. Subsequently, Randstad Pty Ltd ('Randstad') entered into a labour hire contract with the Council to provide the labour that had formerly been provided by PIW. From 5 August 2019, Mr Haining was employed by Randstad and was on-hired to perform the same work for the Council as a gardener/general hand.

• [3] Mr Haining resigned from Randstad on 27 October 2019 because of illness.

• [4] The question for my determination is whether or not PIW is liable to pay Mr Haining the sum of $8,099.24 gross, being the proportionate payment of long service leave that Mr Craig Geoffrey Fox ('the Applicant'), an Industrial Inspector appointed pursuant to s 899 of the Industrial Relations Act 2016 ('the Act'), claims is payable and unpaid by PIW to Mr Haining.

• [5] There is no dispute between the parties that if Mr Haining does have an entitlement to a proportionate payment of long service leave from PIW, the gross amount claimed by the Applicant ($8,099.24) is accurately calculated.[1]

• [6] The first issue to determine is whether or not PIW dismissed Mr Haining. If the answer to that question is no, then PIW can have no long service leave liability in respect of Mr Haining.

• [7] If the answer is yes, then the second issue to determine is whether PIW dismissed Mr Haining for another reason other than his conduct, capacity or performance within the meaning of s 95(4)(c)(i) of the Act as it existed at that time.

• [8] If PIW dismissed Mr Haining for another reason other than his conduct, capacity or performance, then the third issue to determine is whether there was a break in Mr Haining's continuity of service as between PIW and Randstad. The answer to the third issue requires a consideration of whether Mr Haining was a transferred employee within the meaning of s 132 of the Act which, in turn, requires a consideration of whether there was a transfer of calling within the meaning of s 132(1) of the Act and whether the circumstances of s 132(1)(a) or s 132(1)(b) of the Act are met.

• [9] PIW will be liable for the proportionate payment of Mr Haining's long service leave if:

• PIW dismissed Mr Haining for another reason other than his conduct, capacity or performance within the meaning of s 95(4)(c)(i) of the Act; and

• Mr Haining was not a transferred employee as a consequence of s 132(1)(a) or s 132(1)(b) of the Act not being met.

• [10] The Applicant contends that PIW dismissed Mr Haining for another reason other than his conduct, capacity or performance and that Mr Haining was not a transferred employee because there was no transfer of a calling between PIW and Randstad.[2]

• it did not dismiss Mr Haining and that, on 2 August 2019, his employment with it ended by way of operation of law;[3] and

• even if it did dismiss Mr Haining on 2 August 2019 for another reason other than his conduct, capacity or performance, then, in any event, there was no break in Mr Haining's continuous service between it and Randstad because, on 3 August 2019:

• - there was a transfer of a calling from PIW to Randstad within the meaning of s 132(1)(b) of the Act;[4] or, in the alternative

• - there was a transfer of a calling from PIW to Randstad within the meaning of s 132(1)(a) of the Act;[5] or, in the alternative

• - there was a transfer of Mr Haining's calling from PIW to Randstad within the meaning of s 132(1)(a) of the Act.[6]

• [12] The parties have filed an agreed statement of facts (Exhibit 1).

• [13] The Applicant called evidence from Mr Haining.

• Ms Amber Leis, PIW's Operational Delivery Manager;

• Ms Ashleigh Salmond, PIW's Account Manager; and

• Ms Tania Macfarlan, PIW's General Manager, Northern Region.

• [15] For the reasons that follow, I find that PIW is liable to pay Mr Haining the sum of $8,099.24 gross, being the proportionate payment of long service leave which is payable and unpaid to Mr Haining by PIW.

• [16] By way of summary from the agreed statement of facts:

• both PIW and Randstad are labour hire companies;[7]

• on 20 June 2011, PIW entered into a labour hire contract with the Council whereby it undertook to provide temporary administration and trades labour hire services to the Council ('PIW's labour hire contract'), including the provision of individuals employed by PIW, and on-hired to the Council, in an occupation described as 'gardener/general hand';[8]

• from 20 June 2011 to 2 August 2019, pursuant to its undertakings under PIW's labour hire contract, PIW on-hired individuals to the Council in an occupation described as gardener/general hand;[9]

• on 3 October 2011, PIW entered into a casual employment agreement with Mr Haining under which, amongst other things, Mr Haining was recorded as available to accept offers of casual employment from PIW and that by being recorded as available to accept offers of casual employment, he (Mr Haining) was not guaranteed work;[10]

• in late 2018, the Council sought tenders for the provision of administration and trades labour hire services to it;[11]

• PIW submitted a tender for provision of those services but was unsuccessful;[12]

• on 1 July 2019, the tender was awarded to Randstad;[13]

• from 3 October 2011 to 2 August 2019, PIW employed Mr Haining as a casual employee on-hired to, and assigned to perform work for, the Council in the occupation of 'gardener/general hand' for the purposes of fulfilling PIW's obligations under PIW's labour hire contract, such that Mr Haining had a period of continuous service with PIW of seven years and 10 months;[14]

• Mr Haining did not enter into another casual employment contract with PIW within three months after 2 August 2019;[15]

• - pursuant to a labour hire contract it has with the Council, has been engaged in the calling of providing temporary administration and trades labour hire services to the Council, including the provision of individuals employed by Randstad, and on-hired to the Council, in an occupation described as 'gardener/general hand'; and

• - has had beneficial use of the Council's assets which PIW previously had beneficial use of, and which related to, or were used in connection with, the work performed by the relevant PIW employees who came to perform the work for Randstad;[16]

• in the week ending 2 August 2019, Mr Haining entered into a casual employment contract with Randstad under which he agreed to perform, from 5 August 2019, the same work he had performed as an employee of PIW (on-hired to, and assigned to perform work for, the Council) for the purposes of fulfilling Randstad's obligations under the labour hire contract Randstad had with the Council;[17]

• from 5 August 2019 to 27 October 2019, Randstad employed Mr Haining as a casual employee to perform work which was materially the same as the work he had performed as an employee of PIW on-hired to, and assigned to perform work for, the Council in the occupation of gardener/general hand;[18] and

• on 27 October 2019, because of illness, Mr Haining terminated his employment with Randstad.[19]

• [17] A copy of the casual employment agreement entered into between Mr Haining and PIW on 3 October 2011 was annexed to the agreed statement of facts.[20] Clause 1 of that agreement ('Casual employment') provided:

You will be recorded as being available to accept offers of casual employment with Programmed Integrated Workforce. Being recorded as an available casual employee does not guarantee work, and you acknowledge that:

(a) Any work offered will be in accordance with Programmed Integrated Workforce's needs. Programmed Integrated Workforce may change the quantity and arrangement of any work offered to you as necessary;

(b) There is no obligation on Programmed Integrated Workforce to offer or on you to accept, any assignment. Each offer and acceptance will constitute a distinct contract of employment, on the terms set out in this agreement, which is separate from any subsequent or prior contract of employment; and

(c) You do not have any entitlement to ongoing employment given the casual nature of your engagement.

• [18] Clause 2 ('Commencement date') provided:

Consistent with the nature of your employment, each assignment represents a discrete period of employment on a casual basis. Programmed Integrated Workforce does not employ you on a permanent basis.

(a) Programmed Integrated Workforce will use reasonable endeavours to offer you assignments with a client of Programmed Integrated Workforce. Programmed Integrated Workforce may offer you an assignment, from time to time, by advising you of the expected assignment details, namely:

1. The type of work to be performed;
2. When the work is to be performed;
3. The work roster; and
4. Any other requirements applicable to the particular assignment.

(b) Programmed Integrated Workforce may contact you regarding any current or potential work assignments via telephone, SMS, email or postal mail.

(c) You may accept or reject any offer of an assignment. On completion of an assignment, whether satisfactory or otherwise, Programmed Integrated Workforce is under no obligation to offer you any further assignments.

(d) You acknowledge that an assignment is subject to, and the days of work, hours and length of the assignment are determined by, Programmed Integrated Workforce's client requirements from time to time. Therefore, although you may accept an assignment from, and be informed of the expected days of work, hours and length of the assignment by, Programmed Integrated Workforce, these are not guaranteed.

(e) If you accept an assignment for a specific or minimum period of time, you must complete the specified or minimum period of time. Should you elect not to complete the assignment for whatever reason, you must inform Programmed Integrated Workforce immediately.

(f) You must notify Programmed Integrated Workforce at least 1 hour before normal start time on each day you are unable to attend during any period of an assignment.

(g) During the period of an assignment, you are supervised by, and must act in accordance with the directions given by, Programmed Integrated Workforce's client with respect to defined working hours, safety regulations and the manner and proficiency in which you are to carry out your work.

(h) Programmed Integrated Workforce assesses the hazards and risk controls on each client work site.

(i) Personal Protective Equipment specific to the risks associated with some work will be provided or replacement Personal Protective Equipment will be provided where Programmed Integrated Workforce has assessed the need for replacement.

• [20] Clause 10 ('Termination') relevantly provided:

(a) In accepting this offer of employment, you acknowledge that your employment is casual and therefore offered with no expectation of continuity. Integrated will provide you with a minimum of one hour's notice of any change in your work requirements, suspension of work or the termination of your employment.

• [21] Clause 10(b) of the casual employment agreement set out the circumstances where PIW was entitled to terminate the employment immediately, namely:

(b) Programmed Integrated Workforce will be entitled to terminate your employment immediately if any of the following occurs:

(i) serious misconduct, including but not limited to:

1. Wilful or deliberate behaviour by you that is inconsistent with the continuation of the contract of employment;
2. Conduct by you that causes imminent and serious risk to the health or safety of a person or the reputation, viability or profitability of Programmed Integrated Workforce's business;

(ii) theft;

(iii) fraud;

(iv) assault;

(v) being under the influence of drugs or alcohol at work;

(vi) refusing to carry out a lawful and reasonable instruction that is consistent with your employment;

(vii) failure to observe any safety and specified work practices mandated by Programmed Integrated Workforce or its client; or

(viii) Unlicensed driving (if driving a vehicle forms part of your duties).

• [22] The final provision in the casual employment agreement was:

You will be deemed to have accepted Programmed Integrated Workforce's offer of employment on the terms and conditions set out above, by:

• signing a copy of the document and returning it to Programmed Integrated Workforce; or
• Accepting any offer of work that is made by Programmed Integrated Workforce.

• [23] Mr Haining's evidence was that from 2011, when being on-hired by PIW to the Council, he worked a nine day fortnight, and worked from 6.00 am to 3.00 pm on each day he worked. Mr Haining also worked (and was paid for, I assume) overtime.[21] Mr Haining stated that the last day he worked for PIW was 2 August 2019 and that he started working for Randstad on 5 August 2019, working a nine day fortnight with the same hours of work[22] and, as agreed, performing work materially the same as the work he performed as an employee of PIW on-hired to the Council.

• [24] By 2019, pursuant to PIW's labour hire contract, it provided approximately 300 of its employees to work for the Council.[23] According to Ms Macfarlan, these employees were provided across 40 Council sites.[24]

• [25] On 4 July 2019, after the Council awarded the tender to Randstad on 1 July 2019, Ms Macfarlan received a letter from the National Director of Randstad which confirmed that Randstad would, from 8 July 2019, be approaching PIW employees, engaged at Council sites, to request that they transition their employment to Randstad in order to continue providing services to the Council.[25] In that same letter, Ms Macfarlan was advised that Randstad would commence as the Council's sole labour services provider on 5 August 2019.[26]

• [26] Ms Macfarlan's further evidence was that on or around 5 July 2019, PIW's Chief Executive Officer, Mr Nic Fairbank, telephoned her to ask her to prepare a draft communication to PIW's employees to advise that PIW had been unsuccessful in its tender to the Council. Mr Fairbank further advised Ms Macfarlan that he was keen to communicate with PIW's employees, as quickly as possible, to alert them to the fact that Randstad would be seeking to transition their employment and that he (Mr Fairbank) wanted '... our field employees to be advised of this prior to them being approached directly by Randstad.'[27]

• [27] Ms Salmond's evidence was that on 5 July 2019, she sent an email (drafted by Ms Macfarlan) to all PIW's Council employees to advise them that PIW had been unsuccessful in the Council tender process.[28] The email stated:

It is with regret we write to inform you that Programmed has not been selected as Preferred Supplier to Brisbane City Council.

Brisbane City Council opened up the supply of staffing solutions to their depots and sites in December 2018 through a tender process of which Programmed submitted in the hope to continue our long standing working relationship with Brisbane City Council.

Programmed do not feel as though Brisbane City Council have made the right decision, however, the tender process has been finalised and Randstad have been awarded the tender.

Your health and wellbeing is our priority. Some of you have worked with the Programmed team for many years. We attach our Employee Assistance Program information should you wish to speak with someone about this change. Should you wish to remain in your current role at Brisbane City Council, you will be asked to transition to Randstad. Randstad will be Preferred Supplier from 5th August 2019 which means your last day working with Programmed will be Sunday 4th August or before this date should your last shift be prior to this date. A representative from Randstad will be attending all depots and sites to hand out their paperwork for employees to complete.

Our Account Management team, Ana Kontuzoglus and Ashleigh Salmond will be attending depots and sites as soon as possible to see you all. Should you have any queries or concerns, please do not hesitate to reach out to one of us.

We would like to take this opportunity to thank you for your hard work, loyalty and your professional representation of Programmed. Please reach out to us should you require any assistance in the future.

Your team at Programmed Skilled Workforce.[29]

• [28] That email was received and read by Mr Haining on 5 July 2019.[30]

• [29] There is no dispute that attached to the email was a document regarding an employee assistance program.

• [30] The agreed statement of facts then provides:

1. From 8 July 2019:
   1. Randstad were on BCC sites and spoke to Programmed employees including Mr Haining;
   2. Randstad conducted multiple information sessions, at a variety of locations, in an effort to catch all of the relevant Programmed employees.

1. Randstad arranged for all of the relevant Programmed employees who asked to transition to Randstad to:
   1. complete induction assessments;
   2. enter into contracts of employment so that they could commence as employees of Randstad from 3 August 2019.

• [31] As further agreed between the parties, Mr Haining did not advise PIW that he wanted to keep working for PIW after 2 August 2019 and he did not give PIW any notice of termination which took effect on 2 August 2019.[31]

• [32] The Applicant submitted that it was evident that Mr Haining's service was terminated by PIW by virtue of the email sent on 5 July 2019 in that, read objectively, the tenor of the email was consistent with that of termination, particularly having regard to the statements that:

• the authors of the email thanked the recipient for their hard work, loyalty and professional representation of PIW;

• the recipients were invited to reach out if they required any further assistance in the future;

• employee assistance program information was attached; and

• the final date of employment with PIW was given, being 4 August 2019.[32]

• [33] The Applicant further submitted that in combination with the above, other factors indicative of a '... termination of the employment contract by the Respondent' include that Mr Haining:

• maintained that he was not met by any representative of PIW to discuss prospects of alternative employment with PIW nor his entitlements;

• quite reasonably took the lack of any further communication as indicative that no other work would be offered with PIW and that his services were no longer required; and

• was unaware of any other PIW employees working at the Council site being retained by PIW and redeployed in alternative work.[33]

• [34] Further, the Applicant points to the fact PIW does not contend that Mr Haining was directly offered continuing work.[34]

• [35] For all these reasons, the Applicant contends that Mr Haining's service was not brought about by a resignation.[35]

• [36] In the alternative, the Applicant submitted that even if Mr Haining had submitted a resignation, that would have been his acceptance of PIW's repudiation of his contract of employment.[36]

• [37] PIW submits that because the casual employment agreement expressly provided that there was no obligation for PIW to offer, or for Mr Haining to accept, any assignment and that Mr Haining did not have any entitlement to ongoing employment given the casual nature of his engagement, then '... consistently with the casual nature of his employment, each assignment would represent a discrete period of employment on a casual basis; and that, on completion of an assignment, Programmed was under no obligation to offer Mr Haining further assignments.'[37]

• [38] PIW then submits that the casual employment agreement did not, in itself:

[C]onstitute a contract of employment, or create a relationship of employment. It merely created a situation whereby Programmed was able to make offers of employment to Mr Haining, and Mr Haining was able to accept them. Each offer and acceptance would constitute a discrete employment contract, the terms of which would be governed by the overarching Casual Employment Agreement. As it occurred, Programmed offered assignments to Mr Haining, and Mr Haining accepted those offers.... The terms of the overarching Casual Employment Agreement are agreed between the parties, and it is also agreed that, from 3 October 2011 to 2 August 2019, Programmed employed Mr Haining as a casual employee.[38]

• the terms of the casual employment agreement provided for employment on an assignment-by-assignment basis, with Mr Haining entitled to accept or reject an offer of an assignment and with PIW under no obligation to offer any further assignments;

• on the plain and ordinary meaning of those provisions, the parties deliberately avoided a firm commitment to ongoing employment once a given assignment had been completed;

• the manner in which Mr Haining's service with PIW terminated on 2 August 2019 accorded with the terms of the casual employment agreement and was inconsistent with the notion of dismissal;

• Mr Haining's service did not terminate at the initiative of PIW;

• Mr Haining's service with PIW ended on 2 August 2019 '... for the simple reason that an assignment offered to and accepted by Mr Haining came to an end on that date';

• if PIW had, at any point within the three months which followed after 2 August 2019, entered into another contract of employment with Mr Haining, the termination which occurred on 2 August 2019 would not have broken his continuous service with PIW; but, that did not happen in that more than three months elapsed without another contract between PIW and Mr Haining coming into being which meant that s 103(3) of the Act was invoked; and

• the '... continuous service with Programmed therefore ended on 2 August 2019 not because Programmed wanted it to, but because s 103(3) says so. It did not end at Programmed's initiative. It ended by operation of law.'[39]

• [40] In oral submissions, upon clarification being sought by me about that last submission, PIW submitted that by applying s 103(3) of the Act, Mr Haining's continuous service with PIW ended on 2 November 2019.[40]

• [41] In WorkPac Pty Ltd v Rossato[41] ('Rossato') the High Court held that:

• casual employment involves an absence of a firm advance commitment as to the duration of the employee's employment or the days (or hours) the employee will work;[42]

• where an agreement between an employer and employee expressly provides that the employee's employment was on an 'assignment-by-assignment basis', with the employee entitled to accept or reject an offer of assignment, and the employer under no obligation to offer any further assignments, then, on the plain and ordinary meaning of such provisions, the parties deliberately avoided a firm commitment to ongoing employment once a given assignment had been completed and, as such, the employee was a casual employee;[43] and

• even where a casual employee enters into an agreement with an employer containing the express terms, as referred to immediately above, and the employee has a reasonable expectation of continuing employment on a regular and systematic basis because of the working hours fixed by the employer, that is entirely compatible with the notion of casual employment where there is an absence of a firm advance commitment to continuing work beyond the completion of a particular assignment.[44]

• [42] I accept, having regard to cls 1, 2 and 3 of the casual employee agreement between PIW and Mr Haining, that Mr Haining was a casual employee. This is because there was an absence of a firm advance commitment by PIW to Mr Haining continuing work beyond the completion of a particular assignment. In particular, by cls 3(a) and (c) of the casual employment agreement, PIW could offer Mr Haining an assignment, from time to time, Mr Haining could accept or reject any offer of assignment, and on completion of an assignment, PIW was under no obligation to offer Mr Haining any further assignments. These express contractual terms are evidence of an absence of a firm advance commitment as to the duration of Mr Haining's employment or the days (or hours) Mr Haining would work.

• [43] Furthermore, consistently with the decision of the High Court in Rossato, the fact that Mr Haining may have had a reasonable expectation of continuing employment on a regular and systematic basis - because he was working a nine day fortnight between the hours of 6.00 am to 3.00 pm on each day he worked - that fact was still compatible with the notion of casual employment because of the express terms of an absence of a firm advance commitment to continuing work beyond the completion of a particular assignment.

The construction of s 95(4)(c)(i) of the Act

• [44] The meaning of the provision in a statute must be determined by reference to the language of the instrument viewed as a whole[45] and the legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.[46] In addition, the purpose of the legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions.[47]

• [45] Section 14A(1) of the Acts Interpretation Act 1954 provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. The noun 'purpose', for an Act, is defined in the Acts Interpretation Act 1954 to include its policy objective.

• [46] A consideration of the context of statutory text includes the legislative history and extrinsic materials.[48] The context should be considered at the first instance and not at some later stage and context includes things such as the existing state of the law and the mischief the statute intended to remedy.[49]

• [47] Long service leave is provided, as one of the Queensland Employment Standards, by virtue of ch 2, pt 3, div 9 of the Act. Section 95 of the Act sets out the entitlement to long service leave of an employee other than a seasonal employee.[50] As at 2 August 2019, given that ch 2, pt 3, div 9, sub-divs 7 and 8 set out the entitlement to long service leave for seasonal employees, my view is that s 95 of the Act applied to casual employees.

• [48] Section 95(2) of the Act sets out an employee's entitlement to long service leave after completing 10 years continuous service. The combined effect of s 95(3) and (4) of the Act sets out the circumstances where an employee, who has completed at least seven years continuous service, is entitled to a proportionate payment of long service leave on the termination of the employee's service.

• [49] As at 2 August 2019, s 95(4) of the Act relevantly provided:

(4) However, if the employee's service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if-

(a) the employee's service is terminated because of the employee's death; or

(b) the employee terminates the service because of-

(i) the employee's illness or incapacity; or

(ii) a domestic or other pressing necessity; or

(c) the termination is because the employer-

(i) dismisses the employee for a reason other than the employee's conduct, capacity or performance; or

(ii) unfairly dismisses the employee;

• [50] On the clear words used in s 95(4)(c) of the Act, that provision dealt with the entitlement of an employee, to a proportionate payment of long service leave, who had completed at least seven years continuous service and where the employee's service was terminated because the employer dismissed the employee. Pursuant to s 95(4)(c)(i) of the Act, an employee had such an entitlement where the employer dismissed the employee for another reason other than the employee's conduct, capacity or performance.[51] For the reasons given in paragraph [47] of these reasons, that provision applied to a casual employee.

• [51] There is no definition in the Act for the verbs 'dismiss' or 'dismisses'. However, there was no dispute between the parties that the circumstances contemplated in s 95(4)(c)(i) arose where the employee's service was terminated at the initiative of the employer. Having regard to the other circumstances contemplated in s 95(4) of the Act, where the employee had an entitlement to a proportionate payment of long service leave on termination of the employee's service,[52] the parties' interpretation of s 95(4)(c)(i) is clearly consistent with the grammatical and purposive construction of that provision.

• [52] It is also consistent with how the noun 'dismissal' has been construed in Queensland industrial relations legislation dealing with the rights of employees to seek reinstatement upon their unfair dismissal[53] and how that noun has been construed in cognate provisions in industrial relations legislation in other States.[54]

• [53] Is the nature of casual employment inconsistent with the notion of such an employee being dismissed or the casual employee's employment being terminated at the initiative of the employer? There have been cases where industrial tribunals have found, based on the facts of a particular case, that there was an ongoing or continuing contract of employment between an employer and a casual employee.[55]

• [54] In my opinion, the answer to the question of whether a casual employee has been dismissed or a casual employee's employment has been terminated at the initiative of the employer depends upon the relevant facts of each case.

• [55] On the facts of the present case, as I have indicated above, I find that Mr Haining was a casual employee. Despite this, there are facts in the present case that indicate to me that Mr Haining's service was terminated at the initiative of PIW such that he was dismissed within the meaning of s 95(4)(c)(i) of the Act. There are four reasons for my view.

The casual employee agreement provides for the termination of Mr Haining's employment by PIW

• [56] In my view, the terms of the casual employment agreement must be examined so as to determine whether Mr Haining was dismissed.

• [57] In Rossato,[56] the plurality cited with approval part of the decision of French CJ and Bell and Keane JJ in Commonwealth Bank of Australia v Barker,[57] namely:

The employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment.[58]

• [58] Further, relevantly to the present case, the plurality in Rossato also held that:

1. To insist upon binding contractual promises as reliable indicators of the true character of the employment relationship is to recognise that it is the function of the courts to enforce legal obligations, not to act as an industrial arbiter whose function is to synthesise a new concord out of industrial differences. That it is no part of the judicial function to reshape or recast a contractual relationship in order to reflect a quasi‑legislative judgment as to the just settlement of an industrial dispute has been emphatically the case in Australia at the federal level since the Boilermakers Case.

1. To insist that nothing less than binding contractual terms are apt to characterise the legal relationship between employer and employee is also necessary in order to avoid the descent into the obscurantism that would accompany acceptance of an invitation to enforce "something more than an expectation" but less than a contractual obligation. It is no part of the judicial function in relation to the construction of contracts to strain language and legal concepts in order to moderate a perceived unfairness resulting from a disparity in bargaining power between the parties so as to adjust their bargain. It has rightly been said that it is not a legitimate role for a court to force upon the words of the parties' bargain "a meaning which they cannot fairly bear [to] substitute for the bargain actually made one which the court believes could better have been made".

1. Three additional points may be made here. First, while mutual undertakings may not always be express, where there are express terms of the contract between the parties, they must be given effect unless they are contrary to statute.

• [59] The applicable principles in construing a commercial contract, which apply to employment contracts,[59] are settled. They relevantly include:

• that the rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose;[60]

• in determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean; and that enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract;[61] and

• ordinarily, this process of construction is possible by reference to the contract alone and indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.[62]

• [60] By cl 10(a) of the casual employee agreement, PIW could give Mr Haining a minimum of one hours' notice of the '... termination of your employment'. By cl 10(b), PIW could '... terminate your employment immediately' if Mr Haining engaged in any of the conduct referred to in that clause.

• [61] What is the meaning of the phrases '... termination of your employment' or '... terminate your employment immediately' in cl 10 of the casual employment agreement?

• [62] The plain words used in cl 10 refer to the termination of Mr Haining's employment. They do not refer to the ability of PIW to terminate an assignment that has been offered to, and accepted by, Mr Haining.

• [63] True, cl 2 of the casual employment agreement provided that each assignment represented a discrete period of employment of Mr Haining on a casual basis. However, as referred to above, in determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean, which requires consideration of the language used, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.

• [64] While Mr Haining was not employed on a permanent basis, he was employed as a casual employee on the terms set out in the casual employment agreement between him and PIW.[63] So much is made clear by the provisions immediately following the conclusion of cl 10 of the casual employment agreement. By those provisions, Mr Haining was deemed to have accepted the '... offer of employment' by PIW on the terms and conditions set out in the casual employment agreement by signing that agreement and returning the document to PIW, and accepting any offer of work made by PIW.

• [65] By the words used in cl 10 of the casual employment agreement, the purpose of that provision was to confer on PIW the ability to terminate Mr Haining's employment. In particular, by cl 10(a) of the casual employment agreement, PIW had the ability to terminate Mr Haining's employment as a casual employee provided it gave him a minimum of one hours' notice. Given the purpose of cl 10(a) and the use of the noun 'employment' in the phrase '... termination of your employment', it seems to me that a reasonable businessperson would understand that provision to mean that PIW could terminate Mr Haining's casual employment, being his employment on the terms agreed between him and PIW in the casual employment agreement, for any reason, provided it gave him a minimum of one hours' notice.

• [66] In fact, for the reasons given below, that is what occurred.

Mr Haining received more than one hours' notice that his employment was going to be terminated by PIW

• [67] Mr Haining's undisputed evidence was that he worked a nine day fortnight between the hours of 6.00 am to 3.00 pm on each day he worked. Ms Salmond's email sent on 5 July 2019, reproduced in paragraph [27] of these reasons, provided advice to Mr Haining, as a casual employee of PIW, that his last day working with PIW would be 4 August 2019 or before that date should his last shift be prior to that date.

• [68] Mr Haining's further undisputed evidence was that he received that email on the day it was sent, being 5 July 2019. It is an agreed fact that PIW continued to employ Mr Haining up to and including 2 August 2019.[64]

• [69] On the evidence before me, PIW invoked cl 10(a) of the casual employment agreement and gave Mr Haining notice of the termination of his casual employment which was more than the one hour minimum period of notice prescribed.

• [70] There is no other evidence that PIW offered Mr Haining any other work or other employment after his receipt of Ms Salmond's email.

The motivating or real reason that PIW terminated Mr Haining's employment was its loss of the Council contract

• [71] Having regard to the facts agreed between the parties as summarised in paragraph [16] of these reasons, the motivating reason or real reason why Mr Haining stopped being employed by PIW, on the terms provided for in the casual employment agreement, was the fact that PIW was unsuccessful in re-tendering for the contract to provide the relevant labour to the Council.

• [72] This fact, together with Mr Haining's receipt of the email from Ms Salmond on 5 July 2019, when considered together, point to the ultimate fact that Mr Haining's employment with PIW came to an end at the initiative of PIW.

Mr Haining's employment did not end by operation of law

• [73] PIW's submissions that Mr Haining's employment came to an end by operation of law, through the application of s 103(3) of the Act, and that his service with PIW did not end at its initiative, must be rejected.

• [74] Sections 102 and 103 of the Act relevantly provides:

casual employee means an employee who is employed more than once by the same employer over a period.

(2) The employee's service is continuous service with the employer even though-

(a) the employment is broken; or

(b) any of the employment is not full-time employment; or

(c) the employee is employed by the employer under 2 or more employment contracts; or

(d) the employee would, apart from this section, be taken to be engaged in casual employment; or

(e) the employee has engaged in other employment during the period.

(3) However, the continuous service ends if the employment is broken by more than 3 months between the end of 1 employment contract and the start of the next employment contract.

• [75] Construed objectively, s 103 sets out the circumstances where a casual employee's continuous service is deemed not to be broken when employed more than once by the same employer over a period. In particular, s 103(3) of the Act provides that a casual employee's continuous service with the one employer ends if the employment is broken by more than three months between the end of one employment contract and the start of the next employment contract. As a consequence, if Mr Haining had entered into a new casual employment agreement with PIW within three months of 2 August 2019, then by virtue of s 103(3) of the Act, his continuity of service with PIW would not have been broken.

• [76] For these reasons, s 103(3) of the Act did not operate in the way contended by PIW. Section 103(3) of the Act does not, by its operation, determine when a casual employee's employment with one employer is terminated as contended by PIW.

• [77] For these four reasons, Mr Haining's casual employment with PIW came to an end at the initiative of PIW at the conclusion of his last assignment on 2 August 2019.

On 2 August 2019, did PIW dismiss Mr Haining for another reason other than Mr Haining's conduct, capacity or performance?

• [78] Section 95(4)(c)(i) of the Act relevantly provided that an employee was entitled to a proportionate payment of long service leave only if the employer '... dismisses the employee for another reason other than the employee's conduct, capacity or performance.'

• [79] Ms Macfarlan and Ms Salmond gave no evidence that PIW dismissed Mr Haining for his conduct, capacity or performance.

• [80] For the reasons I have referred to earlier in paragraph [71], I find that PIW dismissed Mr Haining for another reason other than his conduct, capacity or performance, the consequence of which is that, on 2 August 2019, PIW dismissed Mr Haining within the meaning of s 95(4)(c)(i) of the Act.

• [81] Whether Mr Haining was a transferred employee within the meaning of s 132 of the Act requires a consideration of whether there was a transfer of a calling within the meaning of s 132(1) of the Act and whether the circumstances of s 132(1)(a) or s 132(1)(b) were met.

Was there a transfer of a calling within the meaning of s 132(1) of the Act?

Section 132 of the Act

• [82] Chapter 2, pt 4 of the Act relevantly applies for working out how an employee's rights and entitlements under ch 2 by prescribing when the employee's continuous service is not broken.[65]

• [83] Section 132 is contained in ch 2, pt 4 of the Act and relevantly provides:

(1) This section applies to a person (a transferred employee) who-

(a) becomes an employee of an employer (the new employer) because of the transfer of a calling to the new employer from another employer (the former employer); or

(b) is dismissed by an employer (also the former employer) before the transfer of a calling if-

(i) the person is employed by another employer (also the new employer) after the transfer of a calling; and

(ii) the employee-

(A) was dismissed by the former employer within 1 month immediately before the transfer; and

(B) is re-employed by the new employer within 3 months after the dismissal.

(2) The transfer of the calling is taken not to break the transferred employee's continuity of service.

(3) A period of service with the former employer, including service before the commencement, is taken to be a period of service with the new employer.

(4) In relation to the transfer, the transferred employee is not an employee to whom part 3, division 13, subdivision 2 applies, unless an applicable industrial instrument mentioned in section 125(1)(a) provides otherwise.

• [84] The Dictionary to the Act relevantly provides:

(a) a craft, manufacture, occupation, trade, undertaking or vocation; or

(b) a section of something mentioned in paragraph (a).

transfer of a calling includes the transmission, assurance, conveyance, assignment or succession of the calling -

(a) either by-

(i) operation of law; or

(ii) agreement, including an agreement affected by a third person; and

(b) either before or after the commencement of this Act

• the noun 'calling' in s 132 of the Act refers to the business of an employer rather than the occupation of the employee;[66] and

• even if a transfer did occur from PIW to Randstad, which the Applicant denies, the only relevant type of transfer consideration, on the facts of the case, was that of a succession of the calling.[67]

• [86] The Applicant then submits, having regard to the decision of the High Court in Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd ('Gribbles')[68] that:

• PIW and Randstad were in the same business activity, namely, providing labour hire services to the Council;

• PIW continued on in its other labour hire business and did not cease trading;

• PIW ceased to enjoy what could possibly be characterised as an intangible asset being the Council contract, however, the contract merely indicated that the business activities pursued by the two employers were identical which was not sufficient to demonstrate a transfer of business;

• Randstad did not use the same assets as PIW in pursuing the same business activity, the consequence of which is that there has been no transfer of a calling; and

• therefore, there is no need to consider the 'mode of transfer' given that the only type of transfer, being succession, was not met.[69]

• [87] PIW submitted that there was a transfer of the calling - being the calling of providing temporary administration and trades labour hire services to the Council[70] - from it because:

• from 3 August 2019, Randstad came to be engaged in the very same calling in which PIW had, from 20 June 2011 to 2 August 2019, been engaged; and

• Randstad came to be engaged in that calling by agreement with the Council,

which is enough to demonstrate that the calling was transitioned or transferred, by agreement between Randstad and the Council, from PIW to Randstad on 3 August 2019.[71]

• [88] PIW further submitted that in addition to the agreement between the Council and Randstad, which was necessary for Randstad to commence its engagement in the calling, there also was:

• agreement between the Council and PIW, in the form of contractual obligations imposed on PIW, which assisted in effecting the transfer of the calling to Randstad; and

• agreement between PIW and Randstad, in the form of discussions and arrangements entered into by PIW and Randstad, pursuant to both contractual obligations imposed on PIW and obligations imposed on PIW and Randstad, by virtue of their membership of the Recruitment, Consulting and Staffing Association Australia & New Zealand, as to the transition of employees which assisted in effecting the transfer of the calling to Randstad.[72]

• [89] PIW then submitted that once it is concluded that there was a transfer of a calling on 3 August 2019 from PIW to Randstad, it followed that even if Mr Haining was dismissed for a reason other than his conduct, capacity or performance, the condition in s 132(1)(b) of the Act was satisfied because:

• Mr Haining was dismissed by PIW on 2 August 2019;

• there was a transfer of a calling from PIW to Randstad on 3 August 2019; and

• Mr Haining became an employee of Randstad on 5 August 2019.[73]

• [90] PIW also submitted that s 132(1)(a) of the Act was satisfied because the facts agreed between the parties demonstrate that the transfer of the calling from it to Randstad was the cause for Mr Haining becoming an employee of Randstad in that, but for the transfer of that calling, Mr Haining would not have become an employee of Randstad. In this regard, PIW submitted that Mr Haining becoming an employee of Randstad was therefore the result of the transfer of a calling or, to put it another way, the transfer of the calling caused Mr Haining to become an employee of Randstad.[74]

• [91] In the alternative, PIW also submitted that there was another transfer of a calling, within the meaning of s 132(1)(a) of the Act, on the facts as agreed between the parties. This was said to be the transfer of Mr Haining's calling, namely, that of being on-hired to the Council in an occupation described as gardener/general hand. PIW submitted that calling was transferred from it to Randstad because it could only be performed by Mr Haining if he was an employee of the entity which provided administration and trades labour hire services to the Council.[75]

The construction of s 132 of the Act

• [92] The predecessor to s 132 of the Act was s 69 of the Industrial Relations Act 1999. That section provided:

(1) A transferred employee is a person who becomes an employee of an employer (the new employer) because of the transfer of a calling to the new employer from another employer (the former employer).

(2) Even if a person is dismissed by the former employer before the transfer of a calling, the person is taken to be a transferred employee if-

(a) the person is employed by the new employer after the transfer; and

(b) the employee-

(i) was dismissed by the former employer within 1 month immediately before the transfer; and

(ii) is re-employed by the new employer within 3 months after the dismissal.

(3) The transfer of the calling is taken not to break the transferred employee's continuity of service.

(4) A period of service with the former employer (including service before the commencement of this section) is taken to be a period of service with the new employer.

(4A) In relation to the transfer, the transferred employee is not an employee to whom chapter 3, part 4, division 1AA applies, unless an instrument mentioned in section 85A(1) provides otherwise.

• [93] The Dictionary to the Industrial Relations Act 1999 contained the same definitions of 'calling' and 'transfer of a calling' as are contained in the Act.

• [94] Section 69 of the Industrial Relations Act 1999 was considered by the Industrial Court of Queensland, on appeal from a decision of the Queensland Industrial Relations Commission, in Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Wilsons Parking Australia 1992 Pty Ltd ('Wilsons').[76]

• [95] In Wilsons, a car park attendant had been employed in the same multistorey car park in Brisbane for almost 12 years. During that 12-year period, the employee was employed by four different companies who had, over that period, successfully tendered to operate a car park from the owner of the building in which the car park was located. The employee's union made a claim for long service leave, said to be payable and unpaid by Wilsons Parking Australia 1992 Pty Ltd, the respondent in the appeal, in respect of all the employee's service at the car park.

• [96] The Court found that having regard to the definition of 'transfer of a calling' in the Industrial Relations Act 1999, there had been a transfer of a calling of the predecessor employers to the respondent within the meaning of s 69(1) of the Industrial Relations Act 1999, such that the respondent had a liability to the employee in respect of long service leave because the employee had the requisite continuous service with the same employer_._

• [97] In terms of whether there had been a 'succession' of the calling, the Court applied the applicable principles as to whether a subsequent employer was bound by an award or certified agreement as a '... successor, assignee or transmittee ... to or of the business or part of the business' within the meaning of s 149 and s 170MB of the Workplace Relations Act 1996.[77] In determining that there had been a transfer of a calling between the employee's previous employers and between Wilsons Parking Australia 1992 Pty Ltd, the Court cited, with approval, the decision of Gleeson CJ, Gaudron, McHugh and Gummow JJ in PP Consultants Pty Ltd v Finance Sector Union of Australia.[78] In that case their Honours relevantly stated:

1. As a general rule, the question whether a non-government employer who has taken over the commercial activities of another non-government employer has succeeded to the business or part of the business of that other employer will require the identification or characterisation of the business or the relevant part of the business of the first employer, as a first step. The second step is the identification of the character of the transferred business activities in the hands of the new employer. The final step is to compare the two. If, in substance, they bear the same character, then it will usually be the case that the new employer has succeeded to the business or part of the business of the previous employer.

• [98] The Industrial Court also cited with approval similar decisions of the Federal Court of Australia that broadly construed the expression '... successor, assignee or transmittee ... of the business' in respect of statutory provisions that determined whether or not a new employer was bound by an award or certified agreement that bound a former employer.[79]

• [99] The Court concluded that if the tests referred to in the Federal authorities were applied in the case before it, then Wilsons Parking Australia 1992 Pty Ltd was the successor to the immediate previous employer of the employee and that the earlier employers were also successors.[80] In coming to that conclusion, the Court stated:

Counsel for the respondent rightly stresses that s. 69 of the Industrial Relations Act 1999 and the definition of "transfer" were not the subject of consideration in any of the federal cases and that the language of s. 69 and the language of the definition is not the language of the Workplace Relations Act 1996 (C'wth). However, because "transfer" is defined inclusively there is no apparent reason for denying the application of the authorities referred to. Indeed, because the concept of "calling" of an employer is also sometimes utilised in determining entitlement to union membership and scope of award, there is room for argument that the suggestion of the Full Court of the Federal Court in Finance Sector Union v. PP Consultants Pty Ltd [1999] FCA 1251; (1999) 91 FCR 337 is to be applied. Federally, in Stellar Call Centres Pty Ltd v. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union [2001] FCA 106; (2001) 106 FCR 302 at [30] the Full Court of the Federal Court has now, of course, rejected that approach, observing:

"The High Court must be taken impliedly to have rejected the suggestion of the Full Court in Finance Sector Union v. PP Consultants at 352 [33] that 'it is logical to focus on the nature of the activities undertaken by the two employers and the question whether there is any material change in the nature of the employees' duties or working conditions'. As we understand it, even if there be complete identity between the duties and working conditions of the relevant employees of both employers, that will not attract the application of s. 149(1) unless the business in which those duties are performed for the new employer is in substance identical in character with the business, or a distinct part of the business, of the presumptive transmittor.".[81]

• [100] The Court then considered the question of whether such a succession had been by '... an agreement effected by a third person', as referred to in the definition of 'transfer of a calling' in the Dictionary to the Industrial Relations Act 1999. In that regard the Court relevantly stated:

The reference to "an agreement effected by a third person" cannot be a reference to an agreement between the first employer and the second employer brokered or otherwise introduced by a third party. Such an agreement would simply be "an agreement" pursuant to which the second employer succeeds to the calling of the first employer. The reference has to include the case in which the succession of the second employer to the previous calling of the first employer is effected by an agreement entered into by a third party with the second employer. That is what occurred here. It was the lease entered into between AXA and Wilson Parking Australia 1992 Pty Ltd which put Wilson Parking 1992 Pty Ltd into possession of the multistorey car park at 118 Charlotte Street, and into possession of the equipment previously used by Australian Car Parking Pty Ltd to operate a car park. It was that lease which subjected Wilson Car Parking 1992 Pty Ltd to an obligation to conduct the business of a car park at 118 Charlotte Street. It was that combination of circumstances which, without gap in time, led to Wilson Parking 1992 Pty Ltd conducting the "undertaking" (or "calling") previously conducted by Australian Car Parking Australia Pty Ltd.

If the purpose was to give the second employer the chance to confront the problem of potential liability for long service leave, that opportunity continues to be observed by the extension of the scheme about "transmission" to the case where an agreement between the second employer and a third party brings about succession of the second employer to the previous calling of the first employer.

In my view within the meaning of s. 69(1) the calling of Australian Car Parking Pty Ltd was transferred to Wilson Parking Australia Pty Ltd on or about 30 June 1999/1 July 1999.[82]

• [101] After the decision of the Court in Wilsons, the High Court made its decision in Gribbles.

• [102] In Gribbles, Region Dell Pty Ltd ('Region Dell') licensed Gribbles Radiology Pty Ltd to provide radiology services at a medical clinic at Moorabbin, replacing a previous licensee, Melbourne Diagnostic Imaging Group ('MDIG').

• [103] Region Dell, in respect of its contracts with MDIG and Gribbles, licensed the use of part of the clinic's premises as a radiology practice, supplied specific radiology equipment and also supplied radiographers, consumables and spares.

• [104] Gribbles was carrying on the same business as MDIG, using the same business premises, the same equipment and the majority of the same employees of MDIG. Indeed the facts were that Region Dell, in respect of the approaching termination of the contract with MDIG, took steps to facilitate the employment of MDIG's radiographers by Gribbles. Region Dell wrote to the MDIG employees and invited them to send details of their qualifications and current registration to Gribbles. Gribbles subsequently contacted MDIG and asked for permission to approach staff for the purpose of employing them, to which MDIG agreed, and subsequently Gribbles employed the employees.[83] Gribbles subsequently ceased providing radiographic services at the clinic and terminated the employment of the employees.

• [105] The question was whether Gribbles, pursuant to s 149(1)(d) of the Workplace Relations Act 1996, was bound by an award, to which MDIG was a respondent and was bound, which required the payment of severance pay. Section 149(1)(d) of the Workplace Relations Act 1996 relevantly provided that:

[A]n award determining an industrial dispute is binding on ... any successor, assignee or transmittee (whether immediate or not) to or of the business or part of the business of an employer who was a party to the industrial dispute.

• [106] Chief Justice Gleeson and Hayne, Callinan and Heydon JJ, determined that Gribbles was not bound by the award. Their Honours dealt the meaning of the noun 'business' in s 149(1)(d) of the Workplace Relations Act 1996 and held that:

• to be a 'successor', it is not enough that the new employer pursues the same kind of business activity as the old employer;

• what was meant by the word 'business' in this context focuses upon succession, assignment and transmission to or of a business which is identified as the business of an employer which necessarily directs attention to what it is that the former employer had which is to be described as the 'business' of that employer;

• the 'business' of an employer may be constituted by a number of different assets, both tangible and intangible, that are used in the particular pursuit, whether of profit, if the 'business' is a commercial enterprise;

• in the case of a commercial enterprise, identifying the employer's 'business' will usually require identification both of the particular activity that is pursued and of the tangible and intangible assets that are used in that pursuit;

• the 'business' of an employer will be identified as the assets that the employer uses in the pursuit of the particular activity and it is the assets used in that way that can be assigned or transmitted and it is to the assets used in that way that an employer can be a successor;

• the new employer may be a successor, assignee or transmittee to or of the business, or part of the business, of an employer who was a party to the relevant industrial dispute if the new employer, having the beneficial use of assets which the former employer used in the relevant pursuit, uses those assets in the same or a similar pursuit; and

• whether the new employer is a successor, assignee or transmittee, will require examination of whether what the new employer has can be described as a part of the former employer's business.[84]

• [107] Their Honours then gave some examples by stating:

1. An employer, who has acquired the plant and premises with which, and at which, the former employer conducted part of its business, may well be the successor to that part of the business of the former employer. Yet, in other cases, acquisition of an item of plant used by an employer could not be said to make the acquirer the "successor" to any part of the business of the former employer.

1. A simple example may serve as a basis for illustrating the kinds of question that may arise. The buyer of a second hand motor vehicle sold by an employer would not ordinarily be said to be the successor to a part of that employer's business. More than the bare fact of acquisition of an item of plant used in the former employer's business would have to be shown to warrant the conclusion that one was the successor to a part of the business of the other. Showing that one engages in the same business activities as the other will not always suffice. To pursue the used motor vehicle example a little further, showing that the purchaser used that vehicle for the same kinds of purpose as the employer who sold it, would not, without more, warrant the conclusion that the purchaser was successor to or of a part of the business of the vendor. The purchaser would not enjoy any part of the "business" of the former employer.

1. The conclusion just reached about this example turns upon what is meant by the "business" of the former employer. It understands that word, at least when applied to a commercial venture, as a reference to the combination of the activities pursued in the business and the assets that are used in that business. The conclusion assumes that, either the asset in question (the motor vehicle) is not the sole or principal asset of the business, or that, if it is, it is replaced by another and similar asset which the former employer will use in the same way. That is, the conclusion assumes that the combination of activities and assets which together constitute the former employer's "business" continues largely unaffected by what has happened. There has been no succession because the former employer has not ceased to enjoy any part of its business.

1. The example we have given emphasises the need, when considering the application of s 149(1)(d), to do two things. First, it is necessary to identify exactly what is meant in the context of the particular case, by "the business or part of the business" of the former employer. Secondly, it is necessary to identify what part of that "business" the former employer once had which is now enjoyed by the person allegedly bound by the award.[85]

• Gribbles was not a successor to MDIG because when Gribbles was operating the clinic, it enjoyed no part of the business of MDIG; and

• while Gribbles and MDIG pursued the same business activity, namely conducting a radiology practice in pursuit of profit, Gribbles did that at the clinic without enjoying any part of the tangible or intangible assets that MDIG had deployed in pursuing its activity as a radiology practice, whether at the clinic or elsewhere.[86]

• [109] In supporting that conclusion, the majority held:

1. It is convenient to seek to support that conclusion by considering the features of this case to which the HSU submissions gave chief emphasis - the same business activity conducted in the same place, using the same equipment and the same employees. Both Gribbles and MDIG pursued the same business activity. That activity could be described in a number of different ways. It could be described as providing radiology services or it could be described, with more particularity, as providing radiology services at the Moorabbin Heritage Clinic by employing radiographers to take medical images at that clinic. Nothing turns on the particularity of description. It may be accepted that each pursued the same activity.

1. But what asset of MDIG did Gribbles come to use when it began to pursue that activity at the Moorabbin Heritage Clinic? Both Gribbles and MDIG used the same equipment, but the equipment was Region Dell's. The place where they carried on this activity was not theirs. Each had a separate licence from Region Dell to occupy a part of the clinic premises but MDIG's licence had come to an end and a new licence had been granted to Gribbles. Both employed the same radiographers, but no employee is an asset in the employer's balance sheet to be bought or sold.

1. It may be assumed that both Gribbles and MDIG traded at the Moorabbin Heritage Clinic in the hope or expectation that work would come from referrals by doctors working at the clinic or from patients who came to the premises. It may be thought that this hope or expectation could constitute a form of goodwill. If that were so, it may be that the goodwill should have been reflected in the accounts of each. But there was no evidence and no argument advanced about the question of goodwill attaching to this aspect of the business of either MDIG or Gribbles. In particular, it was not suggested in argument, whether in the courts below or in this Court, that Gribbles had succeeded to that part of the business of MDIG which was constituted by MDIG's goodwill at the Moorabbin Heritage Clinic. Indeed, the absence of any dealing between the two (by which MDIG sought to realise some value attaching to such goodwill by exacting a price for it from Gribbles) would suggest very strongly that MDIG had no such goodwill. Be this as it may, the point does not arise.[87]

• [110] The decision of the High Court in Gribbles was considered by the Commission in Melanie Saxby, Department of Justice and Attorney-General v Southern Down Security Pty Ltd.[88]

• [111] In that case, an Inspector within the meaning of the Industrial Relations Act 1999, made a claim for the proportionate payment of long service leave for an employee. The employee, who worked as a security guard at Greenbank Army Barracks, was initially employed by one company in 1998. In July/August 2004, he was then employed by Chubb Security Australia Pty Ltd ('Chubb'), which recognised the commencement date for the purposes of calculating his long service leave entitlements as being 23 November 1998.

• [112] Then in October 2005, the employee was employed by Southern Down Security Pty Ltd ('SDS') in circumstances where SDS had a subcontract or licensing arrangement with Chubb to provide security services at the Greenbank Army Barracks. The employee, in September 2007, then resigned because of pressing necessity within the meaning of s 43(4)(b)(ii) of the Industrial Relations Act 1999.

• [113] The Commission then had to determine whether all of the employee's service from 1998 amounted to continuous service for the purpose of the proportionate payment of long service leave. That in turn required a determination of whether there had been a transfer of calling between Chubb and SDS.

• [114] In considering that question, the Commission noted that a difficulty in applying the decision in Wilsons, to determine the question of whether there had been a transfer of calling as between Chubb and SDS, was the subsequent decision of the High Court in Gribbles.[89] The Commission, without deciding, considered it was more likely than not that there was a transfer of a calling based on the law established by Gribbles.[90]

What is the 'calling' referred to in s 132 of the Act?

• [115] In oral submissions, PIW submitted that the noun 'calling' in s 132(1) of the Act was capable of referring to the calling of an employee as well as to the calling of an employer.[91]

• [117] As referred to earlier in these reasons, a consideration of the context of statutory text may include the legislative history and consideration of extrinsic materials, and context should be considered at the first instance and not at some later stage.

• [118] The history of the predecessor provisions to s 132 of the Act is against the construction of the noun 'calling' also meaning the calling of an employee.

• [119] The Industrial Conciliation and Arbitration Acts, 1932 to 1948 were amended by the Industrial Conciliation and Arbitration Acts Amendment Act of 1952. Section 6 of the 1952 Amendment Act introduced the legislative entitlement to long service leave by inserting s 10B into the principal Act. Thereafter, s 10B(13) of the Industrial Conciliation and Arbitration Acts, 1932 to 1952 expressly dealt with the issue of the transmission of a calling for the purposes of whether the continuous service of an employee had been broken. That section relevantly provided:

(a) Where the calling carried on by a person who is an employer shall have been before, or shall be on or after, the said date transmitted to another person by operation of law or by agreement between them, that transmission shall be deemed not to have broken or otherwise effected, or to break or otherwise affect, the continuity of the service of any employee who service shall have been or shall be, upon the transmission aforesaid, transmitted from one to the other person aforesaid;

• [120] Section 17(16)(a) of the Industrial Conciliation and Arbitration Act 1961, replicated s 10B(13)(a) of the Industrial Conciliation and Arbitration Acts, 1932 to 1952.

• [121] Section 241 of the Industrial Relations Act 1990 prescribed the circumstances of an employee's continuity of service for the purposes of the entitlement to long service leave as prescribed by s 240 of that Act. Section 241(1) provided that for the purposes of calculating an employee's entitlement to long service leave:

(c) continuity of an employee's service with an employer is not broken, and never has been broken, by-

(v) transmission (either by operation of law or by agreement and either before or after the commencement of this Act) of the calling in which the employer is engaged from the employer to another person, if the employee's service is thereby transmitted from the employer to the other person as employer;

(vi) the employee's being dismissed or stood down by the employer, or the employee's terminating employment with the employer, on the date on which the calling in which the employee is engaged is transmitted from the employer to another person (either by operation of law or by agreement and either before or after the commencement of this Act) or within 1 month immediately preceding that date, if the employee is re‑employed by the person to whom the calling is transmitted within 3 months following the dismissal, standdown or termination;

(d) periods of continuous service of an employee with each of the employers from or to whom the calling in which the employer is engaged is transmitted (either by operation of law or by agreement and either before or after the commencement of this Act) are to be taken into account in determining the length of the employee's continuous service with the employer to whom the employee's service is thereby transmitted.

• [122] Similarly, s 197(1) of the Workplace Relations Act 1997 provided that in working out an employee's entitlement to long service leave:

(c) continuity of an employee's service with an employer is not broken by-

(v) the employer's calling is transferred from the employer to another employer; or

(vi) the employee's entitlement being terminated by the employer or employee, on the date when the employer's calling is transferred from the employer to another employer, or within 1 month immediately before that date, if the employee is re‑employed by the other employer within the 3 months after the termination; and

(d) periods of continuous service of an employee with each of the employers from or to whom the calling in which the employee is engaged is transferred must be taken into account in determining the length of the employee is continuous service with the employer to whom the employee's service is transferred.

• [123] This analysis indicates that the above predecessor provisions to s 132 of the Act have provided that the 'calling' is the calling of the employer.

• [124] Section 69 of the Industrial Relations Act 1999 has been set out earlier in paragraph [93]. While that section did not expressly state that the 'calling' was the calling of an employer, the reference to 'calling' in that section has been construed to be the calling of the employer.[92]

• [125] Further support for this view comes from the Explanatory Notes to the Industrial Relations Bill 2016 which relevantly provided

Clause 132 provides arrangements with respect to continuity of service for a transferred employee. A transferred employee is an employee who becomes an employee of a new employer because of the transfer of a calling to that employer from a former employer.

This clause provides the transfer of a business does not break continuity of service for a transferred employee's and that the service of an employee with the former employer is taken to be service with the new employer.[93]

• [126] No doubt, having regard to the definition of 'calling' contained in the Dictionary to the Act, the noun 'calling' may, in the appropriate context, refer to the calling of an employee; for example, in s 31(6)(a) or s 341(1)(c) of the Act.

• [127] However, having regard to the history of the predecessor sections to s 132, and to the relevant part of the Explanatory Notes to the Industrial Relations Bill 2016, my view is that the reference to the noun 'calling' in s 132 of the Act is a reference to the calling of the former employer.

• [128] The noun 'calling' is defined in the Dictionary to the Act to mean '... a craft, manufacture, occupation, trade, undertaking or vocation.' In the context of the present case, and having regard to the decision in Wilsons,[94] it seems to be that the noun 'undertaking' best describes the calling of PIW.

• [129] On the evidence, while it is the case that there was an agreement between the Council and Randstad that led to Randstad providing the relevant labour to the Council, that does not answer the question as to whether Randstad succeeded to the calling or undertaking of PIW by agreement, including an agreement affected by a third person.

• [130] In my view, the decision in Wilsons does not, in light of the decision of the High Court in Gribbles, accurately set out the circumstances whereby one employer succeeds to the calling or undertaking of another employer. In my opinion, I am bound by the decision of the High Court in Gribbles.[95]

• [131] There is no doubt that PIW and Randstad were in the same business, namely, the labour hire business in pursuit of profit. However, that is not enough for there to be a conclusion that the undertaking of PIW was succeeded to by Randstad.

• [132] Applying the principles referred to by the High Court in Gribbles, as to whether one business succeeds that of another, on the facts before me:

• Randstad did not have the benefit of any goodwill of PIW.

• [133] The agreed facts do state that Randstad gained access to, and gradually acquired beneficial use of, job specific personal protective equipment, gardening tools and site access cards '... which were the property of BCC which Programmed had previously beneficial use of, and which related to, or were used in connection with, the work which the relevant Programmed employees performed for Programmed.'[96] That may be so, but those assets of which Randstad subsequently had beneficial use were not PIW's assets; they were the Council's. The equivalent fact in Gribbles was decisive against there being a succession.[97]

• [134] True also, is the fact that there was some co-operation between Programmed and Randstad about Randstad being able to transitioning those PIW employees who wished to continue doing the same work but as employees of Randstad.[98] However, that equivalent fact was not decisive in Gribbles for the reason given by the majority.[99]

• [135] For these reasons, there was no succession of PIW's calling or undertaking by Randstad.

• [136] For the reasons given above, the calling referred to in s 132 of the Act is the calling of the former employer and not that of the relevant employee.

There was no transfer of a calling from PIW to Randstad within the meaning of s 132(1) of the Act

• [137] Section 132(1)(a) of the Act applies where an employee becomes an employee of the new employer because of the transfer of a calling to the new employer from the former employer.

• [138] For the reasons given above, there was no succession by Randstad to the calling of PIW and, as such, there was no transfer of the calling of PIW to Randstad.

• [139] Section 132(1)(b) of the Act applies where an employee is dismissed by the former employer before a transfer of a calling and is employed by the new employer after the transfer of the calling within particular timeframes.

• [140] For the reasons given above, there was no succession by Randstad to the calling of PIW and, as such, there was no transfer of the calling of PIW to Randstad.

Mr Haining was not a transferred employee within the meaning of s 132 of the Act

• [141] Because there was no transfer of the calling of PIW to Randstad, Mr Haining was not a transferred employee within the meaning of s 132 of the Act.

• [142] The consequence is that as at 2 August 2019, pursuant to s 95(4)(c)(i) of the Act, because Mr Haining was dismissed by PIW for another reason other than his conduct, capacity or performance, PIW was and is liable to pay Mr Haining a proportionate payment of long service leave.

• [143] For the reasons given, PIW is liable to pay Mr Haining the amount of $8,099.24 gross as a proportionate payment of long service leave.

That pursuant to s 477(1)(a)(i) of the Industrial Relations Act 2016, the Respondent pay Mr Andrew Haining the amount of $8,099.24, less applicable tax, if any, within 22 days of the date of this order.

[2] The Applicant's outline of submissions filed on 12 November 2021('the Applicant's submissions'), paras. 4 and 5.

[3] The Respondent's outline of submissions filed on 19 November 2021 ('the Respondent's submissions'), para. 7.

[4] The Respondent's submissions, para. 24.

[5] The Respondent's submissions, para. 25.

[6] The Respondent's submissions, para. 26.

[32] The Applicant's submissions, para. 51.

[33] The Applicant's submissions, para. 52.

[34] The Applicant's submissions, para. 51.

[35] The Applicant's submissions, para. 53.

[36] The Applicant's submissions, paras. 54-56.

[37] The Respondent's submissions, para. 3.

[38] The Respondent's submissions, para. 4.

[39] The Respondent's submissions, para. 7.

[41] [2021] HCA 23; (2021) 309 IR 89 ('Rossato').

[42] Ibid [32]-[33] and [105]-[106] (Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ) and [118] (Gageler J).

[45] Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, [69] (McHugh, Gummow, Kirby and Hayne JJ).

[47] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, [26] (French CJ and Hayne J).

[48] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).

[49] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).

[50] Industrial Relations Act 2016 s 95(1).

[51] Industrial Relations Act 2016 s 95(4)(c)(i).

[52] Namely, the employee's death as referred to in s 95(4)(a) of the Act, the two situations where the employee terminated his or her service as referred to in s 95(4)(b) of the Act and the other circumstance where an employer unfairly dismissed the employee as referred to in s 95(4)(c)(ii) of the Act.

[53] J. Waller v Arundel Hills Country Club (Gold Coast) Pty Ltd (1998) 158 QGIG 469 at 470 (Commissioner Fisher) and Saville v Department of Corrective Services [2006] QIRC 126; (2006) 183 QGIG 787 at 788 (Commissioner Blades).

[54] Smith v Director-General of School Education [1993] NSWIRC 57; [1993] NSWIRComm 134; (1993) 31 NSWLR 349, 365 (Fisher CJ, Bauer and Hungerford JJ) and Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia and Anor [1999] SASC 300; (1999) 74 SASR 240, [26] (Bleby J, with Doyle CJ at [1] and Martin J at [82] agreeing).

[55] See, eg, Ryde-Eastwood Leagues Club Ltd v Taylor [1994] NSWIRComm 112; (1994) 56 IR 385, 401 (Bauer and Hungerford JJ and Chief Commissioner Murphy) and Melrose Farm Pty Ltd t/as Milesaway Tours v Milward [2008] WASCA 175; (2008) 175 IR 455, [110] (Le Miere J, with Steytler P at [1] and Pullin J at [31] agreeing).

[57] [2014] HCA 32; (2014) 253 CLR 169.

[59] Cushman & Wakefield (NSW) Pty Ltd v Farrell [2017] NSWCA 24, [58] (Ward JA with Macfarlan JA at [1] and Emmett AJA at [115] agreeing).

[60] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104, [46] (French CJ, Nettle and Gordon JJ).

[65] Industrial Relations Act 2016 s 131(1).

[66] The Applicant's submissions, para. 34.

[67] The Applicant's submissions, paras. 39-40.

[68] [2005] HCA 9; (2005) 222 CLR 194 ('Gribbles').

[69] The Applicant's submissions, paras. 45-47.

[70] The Respondent's submissions, para. 12.

[71] The Respondent's submissions, para. 21.

[72] The Respondent's submissions, para. 22.

[73] The Respondent's submissions, para. 24.

[74] The Respondent's submissions, para. 25.

[75] The Respondent's submissions, para. 26.

[76] [2002] ICQ 49; (2002) 171 QGIG 323 ('Wilsons').

[78] [2000] HCA 59; (2000) 201 CLR 648.

[83] Gribbles (n 68) [62] (Kirby J).

[84] Gribbles (n 68) [35]-[40] (Gleeson CJ, Hayne, Callinan and Heydon JJ).

[88] [2010] QIRC 40 ('Saxby').

[89] Saxby (n 88) [52] (Commissioner Fisher).

[93] Explanatory Notes, Industrial Relations Bill 2016 (Qld), 33. Emphasis added.

[95] Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303, [60] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).