Drolz v Transport for New South Wales

Industrial Relations Commission (NSW)|2019-10-03

Mr Zeng for the Respondent File Number(s): 2019/00266910

Judgment

Ms Drolz (the applicant) worked as a speechwriter in the Ministerial Briefing Team for Transport for New South Wales (the respondent) from May 2018 until August 2019 (approximately 15 months).
The applicant asserts that she was employed by the respondent. The respondent denies this and says that it secured the services of the applicant through a labour hire firm, Quay Appointments (Quay).
It was common ground that if the Commission finds that the applicant was not employed by the respondent her application must be dismissed.
I have found that the applicant was not an employee of the respondent for the reasons set out below.

Evidence

The respondent relied upon a Statement of Brett Kiernan, People Partner, signed 18 September 2019.
The statement of Mr Kiernan attached the following documents: 1. A document titled "Prequalification Scheme: Contingent Workforce SCM0007." 2. Transport for NSW Salaries and Conditions of Employment Award 2017. 3. Emails relating to the engagement of the applicant. 4. The customer order schedule. 5. An email containing the time claimed by the applicant for the week ending 4 August 2019 from Quay. 6. A print out of some publically available information relating to Quay.
Mr Kiernan was cross-examined by the applicant.
In addition, the respondent tendered into evidence most of the annexures to a statement of Mr Philip Divilly, Managing Director, Quay Appointments filed with the Commission on 23 September 2019. The respondent did not otherwise seek to tender the statement of Mr Divilly. The documents admitted into evidence included: 1. An email exchange between the applicant and Mr Divilly during the period 2 - 3 May 2018; and 10 May 2018. 2. A document titled 'REGISTRATION FORM' with the Quay Appointments logo bearing the applicant's signature dated 4 May 2018. 3. The Summary of Assignment referred to above at [21]. 4. Employment documentation including a direct bank deposit form, a tax file declaration form, an Australian Taxation Office document titled, 'Instructions and form for employers and employees document: Superannuation (super) standard choice form.' 5. The applicant's payslips from Quay starting from the period ending 13 May 2018 to the pay period ending 4 August 2019 and PAYG payment summaries for the financial years ending 30 June 2018 and 30 June 2019 from Quay relating to the applicant. 6. An email exchange between the applicant and Mr Jeremy Meeks, Recruitment Consultant of Quay dated 5 August 2019.
The applicant filed the following evidence in respect of the matter: 1. Statement of the applicant signed 30 September 2019; and 2. Statement of David Lee Glover signed 29 September 2019.
The applicant's statement attached emails between her, the respondent and Quay and a document titled, "REGISTRATION FORM" on the letterhead of Quay Appointments and the Summary of Assignment.
The applicant was cross-examined by the respondent.
Mr Glover was not cross-examined and his evidence was tendered without objection from the respondent.

The Submissions

Both the applicant and the respondent filed an outline of submissions with respect to the jurisdictional objection and expanded upon these at the hearing. In addition, the applicant relied upon a document titled "Atypical nature of the relationship between the Applicant, the labour hire employer and the host employer."

The respondent's submissions

The respondent submitted that the application should be struck out on the basis that: 1. the Commission lacks jurisdiction to hear and determine the application under sections 83 and 84 of the Industrial Relations Act 1996 (NSW); and 2. the application discloses no reasonable cause of action or is otherwise an abuse of process of the Commission, pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).
The respondent argued that they were not the employer of the applicant. They argued that the applicant was an employee of Quay and her employment is therefore governed by the Fair Work Act 2009 (Cth) (FW Act) and she is eligible to make an application for relief for unfair dismissal in the Fair Work Commission.
The respondent relied upon a number of authorities including Forstaff v Chief Commissioner of State Revenue (2004) 144 1R 1 at [106]-[109], Wilton & Cumberland v Cole & Allied Operations Pty Ltd [2007] FCA 725 ("Wilton"), Fair Work Ombudsman v Ramsey Food Processing Pty Ltd [2011] FCA 1176 at [47] and FP Group Pty Ltd v Tooheys Pty Ltd [2013] FWCFB 9605 at [41]-[45].
In summary, the respondent's argument was that in the absence of a clear intent to create legal relations (being an employment relationship), the Commission should not imply an employment relationship notwithstanding there being a high level of practical control over the applicant by the respondent under the labour hire arrangement.

The applicant's submissions

The applicant argued that the circumstances of the arrangement she had with the respondent was atypical of a legitimate labour hire arrangement.
The applicant pointed to the decision of McKenna C of this Commission in Nguyen v A-N-T Contract Packers Pty Ltd (t/as A-N-T Personnel) (2003) 128 IR 241 ("Nguyen"). The applicant argued that the facts of her matter mirrored that of this case and therefore the respondent should be found to be her employer. In particular the applicant pointed to the following factual matters she asserted the Commission should find: 1. The applicant was not given any information about the true nature of the relationship between her and Quay until five days after her engagement commenced with the respondent (upon receipt of the Summary of Assignment from Quay). 2. The respondent directed every aspect of her work and exercised control in the relationship, including dismissing her and ordering her to leave the premises and not return. 3. The respondent had day-to-day control over the recruitment and employment in every real and practical sense and, similarly, over the termination of her employment.
Arguing that the arrangement with Quay was for the purposes of payroll only and that there was no employment relationship between her and Quay, the applicant referred to a decision of Lacey SDP of what was then the Australian Industrial Relations Commission in Orlikowski v IPA Personnel Pty Ltd [2009] AIRC 565. That decision related to an application by Mr Orlikowski for leave to amend his application, for relief in relation to the termination of his employment to join the purported host of his employment, Australian Quarantine and Inspection Service (AQIS). The decision of the Commission was to allow Mr Orlikowski to join AQIS. The decision did not determine that Mr Orlikowski was employed by AQIS, only that this was arguable.
The applicant submitted that if there could be a notion of joint employment in this jurisdiction for the purposes of unfair dismissal applications, it would be open to conclude this would be such a case given the nature of the arrangements between the three parties. However, the applicant conceded that there is presently no authority for reaching such a conclusion. I agree that there is no such authority that would allow the Commission to make a finding of joint employment in this matter.
The applicant also sought to rely upon what she says occurred during the initial meeting with Ms Pearce in characterising her relationship with the respondent. She says that during this meeting the applicant was told about the nature of the work, the likely salary, the term, and start date. She also relied upon her evidence that Ms Pearce did not tell her during the initial meeting that her engagement would be pursuant to a labour hire arrangement.
The applicant pointed to the NSW Public Service Contingent Workforce Management Guidelines which sets out a list of things that ought to be done by an agency when employing someone through such a labour hire arrangement in order to minimise risks. She argued that this demonstrated that the NSW public service recognises the risks associated with contingent worker being judged as an employee and that the respondent took none of the precautionary measures when recruiting, managing or dismissing her.
The applicant's ultimate submission is that upon an examination of all of the relevant matters, the respondent was her actual, or real and effective employer and that she had been unfairly dismissed.

Legislation

Part 6 of the IR Act deals with applications for relief in relation to unfair dismissal. Section 83 of the IR Act relevantly provides: 83 Application of Part (1) This Part applies to the dismissal of: (a) any public sector employee, or (b) any other employee, except an employee for whom conditions of employment are not set by an industrial instrument and whose annual remuneration is greater than $62,200 (or such greater amount as is prescribed by the regulations). (1A) This Part applies to the dismissal of an employee even if the person was employed in this State under a Federal award. However, this Part does not apply to the dismissal of any such employee if: (a) the person is entitled to make an application to Fair Work Australia with respect to the dismissal on the ground that it was harsh, unjust or unreasonable, or (b) the person would have been entitled to make such an application but for the exclusion of the person from the relevant provisions of the Fair Work Act 2009 of the Commonwealth (being an exclusion of a kind referred to in subsection (2)).

Relevant principles

The relevant principles with respect to the determination of whether a purported host is in fact the employer of a person engaged by a labour hire company was considered by the Full Federal Court in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 321 ALR 404 ("Quest"). Although the High Court upheld an appeal from the Full Court's decision in Quest, that decision related the Full Court's construction of the sham contracting provisions contained in the FW Act: Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 326 ALR 470. The High Court found at [6]: "The Full Court found a number of uncontentious facts and reached a number of uncontroversial conclusions of law."
The above paragraph of the High Court's decision footnotes [230] of the Full Court's decision where North and Bromberg JJ concluded, that "for those reasons" they were satisfied that the workers were employed by the host employer in that matter, Quest.
In Quest, the Full Court considered the Australian and United Kingdom authorities on implying a contract of employment in a labour hire situation, including the often quoted decision of Damevski v Guidice (2003) 133 FCR 438 where it was found that a contract of employment may be implied from the conduct of parties where it does not otherwise exist in writing.
After considering the case of Wilton, the Full Court concluded at [167]-[168]: "[167] There will be limited scope for the implication of an employment contract between a worker and end-user in a triangular setting, where the provision of a worker to the end-user is explained by the presence of a genuine labour-hire arrangement evidenced by the existence and performance of the hallmarks that such arrangements commonly bear."
The Full Bench went on to consider authorities of the United Kingdom, including James v Greenwich London Borough Council [2008] IRLR 354: "[168] That limitation is also recognised in the United Kingdom, where an employment contract will not be implied in a labour-hire setting where "it is not necessary to imply one in order to explain the work undertaken by the worker for the end-user": James at [51] and [52], Mummery LJ (with whom Thomas and Lloyd LJJ agreed). The reference made to necessity, as the observations at [23] and [63] of James suggest, is a reference to the necessity to "give business reality to what was happening" taken from the test of necessity for implying a contract enunciated by Bingham LJ in The Aramis (1989) 1 Lloyd's Rep 213 at 224. [169] In James at [29], Mummery LJ referred with approval to what he identified as helpful observations made by Elias LJ in the decision below (before the Employment Appeals Tribunal, published as James v London Borough of Greenwich [2007] IRLR 168) about how tribunals might approach the question of whether to imply a contract between a worker and an end-user. Of the observations made by Elias LJ, the following are most pertinent to the issues raised in this case (at [57]-[58] and [60]): [57] … Provided the arrangements are genuine and the actual relationship is consistent with them, it is not then necessary to explain the provision of the worker's services or the fact of payment to the worker by some contract between the end-user and the worker, even if such a contract would also not be inconsistent with the relationship. The express contracts themselves both explain and are consistent with the nature of the relationship and no further implied contract is justified. [58] When the arrangements are genuine and when implemented accurately represent the actual relationship between the parties - as is likely to be the case where there was no pre-existing contract between worker and end-user - then we suspect that it will be a rare case where there will be evidence entitling the tribunal to imply a contract between the worker and the end-user. If any such a contract is to be inferred, there must subsequent to the relationship commencing be some words or conduct which entitle the tribunal to conclude that the agency arrangements no longer dictate or adequately reflect how the work is actually being performed, and that the reality of the relationship is only consistent with the implication of the contract. It will be necessary to show that the worker is working not pursuant to the agency arrangements but because of mutual obligations binding worker and end-user which are incompatible with those arrangements. [60] It will, we suspect, be more readily open to a tribunal to infer a contract in a case like Muscat where the agency arrangements were super-imposed on an existing contractual relationship. It may be appropriate, depending on the circumstances, to conclude that arrangements were a sham and that the worker and end-user have simply remained in the same contractual relationship with one another, or that even if the intention was to alter the relationship that has not in fact been achieved. That may be legitimate, for example, where the only perceptible change is in who pays the wages. In such a case the only effect of the agency arrangements may be to make the agency an agent of the employer for the purpose of paying wages. However, in these cases the tribunal is not strictly implying a contract as such but is rather concluding that the agency arrangements have never brought the original contract to an end. [170] Consistently with those observations, at [30] Mummery LJ said: [30] … In the agency worker cases the problem in implying a contract of service is that it may not be necessary to do so in order to explain the worker's provision of work to the end user or the fact of the end user's payment of the worker via the agency. Those facts and the relationships between the parties are explicable by genuine express contracts between the worker and the agency and the end user and the agency, so that an implied contract cannot be justified as necessary. [171] More recently, in Tilson v Alstom Transport [2010] EWCA Civ 1308, Elias LJ (with whom Pitchford and Arden LJJ agreed) dealt with the same question of when a contract can be implied. Elias LJ confirmed (at [8]) the approach taken to that question in James. Elias LJ noted the observation of Bingham LJ in The Aramis that it would be fatal to the implication of a contract that the parties would or might have acted as they did in the absence of it. Elias LJ posed (at [45]) what might be regarded as a guiding question, namely: Is it necessary to infer a contract to explain this divergence between contract and practice?"
For the applicant to succeed in this matter, it is necessary that she establish that the contractual arrangements she had with Quay were ineffective and do not explain the basis upon which she provided her labour to the respondent.

Application of principles

The question of whether a purported host organisation is in fact the employer of an employee of a worker is a mixed question of fact and law that will turn upon the individual circumstances of a case. The applicant submitted that her case is similar to that of Nguyen were the host was found to be the employer in a labour hire situation. However, in a number of key respects the matters are different.
Firstly, the worker in Nguyen had not had any personal contact with the labour hire company, (ANT) prior to her commencement of her engagement and she was directly engaged for a short time by the host, (Thiess). In this matter before the Commission, prior to the commencement of the engagement, the applicant had been asked by the respondent to "sign up" with Quay and there was email and telephone communication between Quay and the applicant. The relevant paperwork was arranged between the applicant and Quay and the applicant had also received and returned bank, taxation and superannuation forms to Quay prior to her commencement.
Secondly in Nguyen, the worker was a union delegate at Thiess and participated in bodies such as Thiess's occupational health and safety committee, was the subject of disciplinary action by Thiess in respect of a particular incident, and there had also been a matter before the Commission relating to certain events involving the worker where Thiess, was a party and ANT had no involvement. In addition, Thiess sent the worker for a medical examination in respect of her work capacity.
Although the applicant gave evidence to the effect that she was not treated differently to employees of the respondent and was for example, involved in long term planning, this evidence does not rise to the level of integration that was present in the relationship between the host and worker in Nguyen, who I also note was engaged by Thiess for much longer that the applicant was working for the respondent.
This case is different to Nguyen and must be determined on its own facts.
The applicant gave evidence with respect to the initial meeting with Ms Pearce as follows: [7] At the meeting on 9 April 2018 we discussed the requirement for the role and my background and approach to speechwriting. Tracey told me the salary was an hourly rate equivalent to the TfNSW Grade 7 rate grossed up to 'around 25%' because I would not be paid for sick leave, annual leave or public holidays and that the term would be initially for six months initially but this was likely to be extended. [8] Tracey said that they had to do it this way because TfNSW had a 'freeze' on new permanent roles. [9] Tracey offered me the role, I accepted it and was asked if I could start ASAP, possibly as early as the following week. [10] Tracey told me that they use several agencies to handle their recruitment, and she would put me in touch with one of them. [11] I thought this was odd, given that I had already been 'recruited', but I assumed it was because TfNSW outsourced some of the recruitment functions such as reference checking, validating qualifications and completing the usual on boarding, 'paperwork'. [12] During this meeting there was nothing said about the interposition into the employer/employee relationship of any third party nor was any term such as skill hire, labour hire, contingent labour or on hire used.
Although the respondent and applicant may have reached an in principle agreement at the initial meeting about her future engagement, it is clear from the subsequent correspondence in evidence between the respondent and the applicant that the arrangement was subject to formal approvals being obtained, the applicant signing up to an external firm and relevant documentation being entered into. For example, the applicant asks Ms Barnao in her email on 13 April 2018, a few days after the initial meeting whether, "Tuesday is a possibility or are things still up in the air?" and she receives a response, "we were waiting on the paperwork to be signed off." Similarly, a response is received in answer to the applicant's further email of 20 April 2018 where Ms Pearce states, "On Monday, I will hopefully have confirmed it has been approved by the 2nd Deputy Secretary (of 3 that is needed)." These emails demonstrate that the applicant did not have a firm contract coming out of the initial meeting with Ms Pearce. The arrangements for her engagement were still to be approved by the Respondent.
Further, to the extent there was confusion or a misunderstanding with respect to the arrangement that was being proposed by the respondent, it was made clear in the email of 26 April 2018 from Ms Pearce to the applicant that the role was "6 months skill hire": see [12] above. Apart from this description of the role, there are several other indicators in the email from Ms Pearce to the applicant that it was proposed that the applicant be engaged to conduct work through a labour hire firm including; 1. a reference to a requirement that a "purchase order" be approved from Ms Pearce's Executive Director; 2. the request from the applicant as to which agency she preferred; 3. the reference to completing the last of the paperwork being the "contract with the agency"; 4. that Ms Pearce requests that if the applicant is still interested in the role, please let her know and, "I will provide you details to one of the agencies so you can sign up and hopefully be with us by mid next week." (emphasis added.)
I find it difficult to accept the applicant's evidence that even after receiving this email, she did not understand that her services would be provided to the respondent through a labour hire arrangement. Irrespective of the applicant's understanding or intention at this time, this communication makes clear that the respondent did not intend to engage the applicant as an employee.
As it transpired, there was no formal written employment contract offered and accepted between Quay and the applicant. However, the applicant gave evidence that she received the Summary of Assignment, five days after she commenced in the role with the respondent on 11 May 2018 in an email from Ms Rachel King of Quay. The applicant gave the following evidence with respect to her receipt of this document: "[30] On Friday, 11 May 2018, my fifth day at TfNSW, I received an email from Rachel King at Quay. Attached was a single page document called 'Summary of Assignment Conditions' (Annexure H). This document did not name an employer and in the context of my understanding of my relationship with TfNSW, it made little sense and was disturbing. I noted that my role was no longer 'skill hire' but was now described as 'on-hire casual'. Of greater concern was that the document purported to incorporate by reference a contract which I had never seen. [31] Even reading what little I had been given, it was easy to conclude that I had been misled and/or misunderstood my employment status. However, I believed it was likely that to dig any deeper would put my employment in jeopardy. I had already been working at TfNSW for a week, I enjoyed the work and liked my co-workers very much and I wanted to stay. I was also embarrassed that I had allowed myself to be put in a situation which, in retrospect, I should have examined more carefully; it was humiliating to find that I had allowed myself to be put in a situation of such apparent powerlessness."
The Summary of Assignment document is on Quay's letterhead and relevantly provided as follows: 1. it 'should be read in conjunction with your contract of employment'; 2. clause 2 - refers to the 'Client/Host Organisation' as Transport for New South Wales; 3. clause 10 - requires compliance with the Client codes of standards of behaviour; and 4. clause 11 - Termination of Assignment - provides that the assignment may terminate when the client notifies Quay Appointments it no longer requires the on-hire employee, and that 'the employer may retain any money due to the on-hire employee and use it as an offset…. If the Client has notified the Employer or if the Employer are otherwise unaware of the claim…. by the Client in connection with the Services.'
It is clear from this document that: 1. Quay purported to be the employer of the applicant; and 2. the respondent was a client of Quay Appointments for the purposes of the engagement of the applicant.
Although there was no formal written contract of employment between the applicant and Quay, it is plain that there was in fact in an employment relationship. Some of the terms of the contract of employment between the applicant and Quay were in writing, for example, the terms contained in the Summary of Assignment and the email of Mr Divilly dated 3 May 2018 which set out the applicant's rate of pay and the assignment duration: see [14] above. To the extend the contract of employment is implied, I find that this is consistent with the intention of the applicant, Quay and the respondent, upon an objective analysis of the evidence before the Commission. In particular, the communications between the respondent to the applicant prior to her commencement and during the engagement exhibit an intention that her services be provided to the respondent by Quay and not through a contract of employment with the respondent.
The existence of an employment contract between the applicant and Quay is also consistent with the customer order schedule signed by Quay and the respondent, referencing the Contingent Workforce Prequalification Scheme. Indeed, it is necessary that a contract of employment between the applicant and Quay existed to explain the relationships between the applicant, the respondent and Quay. The existence of the contract of employment with Quay is also consistent with what actually happened, with respect to the payment of the applicant's wages, the issuing of annual group certificates and the cessation of the engagement with the respondent.
It was not disputed that the respondent controlled the applicant's day to day activities during the engagement. However the authorities are clear that this does not mean that the host must be the employer of a worker engaged through a labour hire arrangement. Here, it is not necessary to imply a contract of employment between the applicant and the respondent to explain the relationship that existed between the respondent, the applicant and Quay. Accordingly, it is not appropriate that this Commission imply such a contract, contrary to the way the parties themselves characterised their relationships throughout the course of the engagement, particularly in circumstances where there was no existing employment relationship between the applicant and respondent prior to the engagement.

Conclusion

For the reasons set out above, I have found that the applicant is not an employee of the respondent. The applicant is or was an employee of the labour hire firm Quay and she may have rights to pursue this matter in the Fair Work Commission.
Accordingly, I make the following order: 1. The application is dismissed. Janine Webster Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 January 2020

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (8)