Factual findings
4 Mr Ramsey has been the person in effective control of the management and operation of the South Grafton Abattoir since 1998. He has exercised that control through companies established by him, or at his request. Mr Ramsey refers to the companies which he established as the Ramsey Group of Companies. Those companies include Ramsey Food Processing, which was the operating company for the abattoir in the period with which the present proceedings are most directly concerned.
5 In 1998, the abattoir and some associated assets were acquired from R J Gilbertson Pty Ltd by companies within the Ramsey Group. Brugold Pty Ltd purchased the land and buildings upon which the abattoir was located. Ramsey Pastoral Company Pty Ltd ("Ramsey Pastoral") acquired some surrounding pastoral land. Ramsey Food Processing obtained various assets by way of lease. It was intended that the abattoir would process beef cattle for Ramsey Meats Pty Ltd ("Ramsey Meats").
6 In his oral evidence Mr Ramsey accepted that "the way the abattoir was set up was that it was a single business … being run by a group of companies controlled by [him]".
7 The statement of claim in the present proceedings asserted that Mr Ramsey had a controlling interest in Ramsey Food Processing, particularised by reference to the following further assertions:
All shares in the First Respondent were owned by Ramsey Wholesale Meats Pty Ltd (ACN 003163022)
All shares in Ramsey Wholesale Meats Pty Ltd were owned by Ramsey Holdings Pty Ltd (ACN 003498628),
All shares in Ramsey Holdings Pty Ltd were owned by Ramsey Pastoral Pty Limited (ACN 118319467),
All shares in Ramsey Pastoral Pty Limited were owned by the Second Respondent.
8 In his defence filed electronically on 5 October 2010, Mr Ramsey did not admit those particulars but accepted in substance that he did ultimately have a personal controlling interest in Ramsey Food Processing. He also admitted in his defence that he was, and at that time remained, a director of Ramsey Food Processing, was its company secretary and was involved in management of the abattoir by Ramsey Food Processing. In a later affidavit sworn on 2 June 2011, Mr Ramsey stated that he was a director of Ramsey Food Processing from 23 March 1998 until 29 October 2010, when he ceased to be a director. A company search dated 26 November 2010 showed that, at that date, the sole director of Ramsey Food Processing was Patricia Ann Ramsey, Mr Ramsey's wife, and no other director was shown. The sole shareholder of Ramsey Food Processing was shown as Ramsey Wholesale Meats Pty Ltd. In both his affidavit and his oral evidence, Mr Ramsey accepted that he was the "manager" of Ramsey Food Processing and the abattoir. I am satisfied that at the time of the events which require attention in the present proceedings Mr Ramsey had a controlling interest in Ramsey Food Processing and was a director of that company. I shall mention a little later the potential significance of changes made to the corporate arrangements after the present proceedings were commenced.
9 For the purpose of the present proceedings I am satisfied, on the whole of the evidence including, in particular, the evidence of Mr Ramsey himself, that he was the person effectively in overall charge of operations at the abattoir. In addition, I am satisfied that he was intimately involved in the management and control of the companies in the Ramsey Group and was the "guiding mind" of all those companies. He was the effective decision-maker concerning all aspects of their activities.
10 As part of the operational arrangements decided by Mr Ramsey, separate companies were established to play the role of "employer" of staff at the abattoir. In light of matters which emerged in the present proceedings I doubt that those arrangements were ever legally effective, but that is not a matter which requires a decision in the present proceedings. Initially those companies were: Ramsey Food Services Pty Ltd, Ramsey Butchering Services Pty Ltd and Ramsey Food Packaging Pty Ltd. In about September 2001 it seems that Ramsey Butchering Services Pty Ltd ceased to be an "employer" at the abattoir and employees of that company purportedly became employees of Ramsey Food Packaging Pty Ltd. In January 2002, Ramsey Food Packaging No. 2 Pty Ltd also became such an "employer". In the case of each of the Ramsey employing companies the financial arrangements may be understood from the following exchanges in the oral evidence of Mr Ramsey:
MS HOWELL: The only income the labour hire companies had - and here I am referring to the Ramsey labour hire companies - was payments made from other companies in the group with respect to labour that those companies - the labour hire companies - engaged?---Only from one other company.
HIS HONOUR: Which company was that?---Ramsey Food Processing.
…
HIS HONOUR: Of the companies that did employ labour, was the only money that went in to their account money that was necessary to pay [their] expenses?---That's correct.
And it all went in from Ramsey Food Processing?---That's correct.
and:
HIS HONOUR: I take it that any capacity any of the [employing] companies had to pay any money to anybody was dependent upon being provided with that money by some other company within the group?---That's correct, your Honour.
11 In August 2002, Mr Ramsey decided to close the abattoir for a short time. He directed that all employees be terminated. Shortly thereafter the abattoir was reopened. When the abattoir reopened 11 former employees sought, but were refused, employment. Proceedings were commenced in this Court against all four employing companies mentioned earlier alleging contraventions of s 298K of the Workplace Relations Act then in force. Greenwood J, who heard the proceedings, traced in some detail the industrial history at the abattoir under Mr Ramsey's superintendence. In a judgment published on 30 June 2006 (McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828; 154 IR 111) Greenwood J found that contraventions had been established against the four employing companies, namely Ramsey Food Packaging Pty Ltd, Ramsey Food Packaging No. 2 Pty Ltd, Ramsey Butchering Services Pty Ltd and Ramsey Food Services Pty Ltd. In a subsequent judgment (McIlwain v Ramsey Food Packaging Pty Ltd (No. 4) [2006] FCA 1302; 158 IR 181) Greenwood J directed amounts of compensation to be paid to each of the 11 employees who were not re-employed and to a twelfth employee who was also found to have been dismissed in contravention of the Workplace Relations Act. In addition, the four employing companies who had been found to have employed the employees in question were ordered to pay penalties totalling $84,000 (70% of the maximum total penalties of $120,000). The orders were made on 4 October 2006. It is worth noting that, in those proceedings, it was not disputed that employees were employed by one or other of the Ramsey employing companies and it was not contended that Ramsey Food Processing was the true employer, as it has been in the present proceedings. That question was not examined in those proceedings.
12 Mr Ramsey's response to the orders made by this Court was to send the three then employing companies (Ramsey Food Packaging Pty Ltd, Ramsey Food Packaging No. 2 Pty Ltd and Ramsey Food Services Pty Ltd) into liquidation. Mr Ramsey's explanation appears from the following exchange:
MS HOWELL: The only way that those labour hire companies which we've been talking about could receive any income or payment whatsoever was if you decided to maintain arrangements where they were used to engage labour?---That's correct.
And what I suggest to you, Mr Ramsey, is you made a decision that the fines imposed and the penalties imposed on those companies would not be paid?---Well, as - as soon as the fines were imposed, the companies weren't liquid and, under the federal law, you can't trade so they had to stop immediately.
HIS HONOUR: They were never liquid, were they, unless you put money in, unless - - -?---That's correct, yes.
13 On 16 October 2006, Mr Ramsey caused a letter to be sent to all employees of those companies in the following terms:
On the 4th October last the Federal Court of Australia made orders against your employer. These orders fined, penalised and awarded costs against your employer causing it to be insolvent and accordingly, your employer cannot continue to incur wage commitments whilst insolvent. Accordingly, your employment with your employer is at an end.
You are at liberty to approach Tempus Holdings Pty Limited who may have a position for you, and who may be willing to honour your entitlements.
14 The ability of the three companies to pay debts or meet obligations incurred in their name, whether to employees or statutory authorities, depended always and in every respect upon the provision of funds to them by Ramsey Food Processing, with the approval of Mr Ramsey. The reality of the position is that Mr Ramsey decided, in response to the orders made by Greenwood J, to set each of those companies on a path to extinction, the orders being thought to be thereby rendered ineffective. The explanation Mr Ramsey gave in the present proceedings was that payment in accordance with the orders of the Court would have stretched the financial resources of Ramsey Food Processing to the point where the abattoir would need to be closed. The evidence in the present proceedings is insufficient to permit an evaluation of the accuracy or honesty of that explanation.
15 The letter to employees dated 16 October 2006 was signed by Mr Paul Marshall. I shall return shortly to say something about the suggested availability of employment by Tempus, to which the letter referred. It is convenient first to say something about Mr Marshall's responsibilities. Mr Marshall became employed as the Personnel Officer at the abattoir in 1998. His employment continued until 30 June 2009. He was initially employed by Ramsey Meats but subsequently became employed by Mortimer Administration Service Pty Ltd ("Mortimer Administration"). Mortimer Administration was registered on 9 October 2001. Mr Ramsey's evidence was that it was established as a service company to provide administrative and clerical services to the abattoir. Its sole shareholder, director and company secretary, until 4 October 2010, was Ms Renee Park (née Mortimer) who lived at "Turangga Farm" a property owned by or on behalf of Mr Ramsey. The services provided to the abattoir were Ms Park's services and those of Mr Marshall. On 4 October 2010, the day before the respondents' defences were electronically filed in the present proceedings, Mrs Ramsey became the sole shareholder, director and company secretary of Mortimer Administration.
16 It is also convenient at this point to mention that another "service company" to the abattoir was Paul Allen Contracting Services Pty Ltd ("Paul Allen Contracting") which was also registered on 9 October 2001. Paul Allen was the livestock manager at the abattoir. In his oral evidence Mr Ramsey agreed that the establishment of this company also occurred at his initiative.
17 So far as the relationship between Ramsey Food Processing and the service companies was concerned, the same pattern was followed as had been established for the Ramsey employing companies. The fact that the service companies had external directors did nothing to disrupt this pattern. Money was passed through a bank account at the minimum level to pay debts or meet obligations incurred in the name of the service company. The same arrangements came to apply to Tempus. Those arrangements were all administered by Ms Park. Associated functions on the personnel side were performed by Mr Marshall. Mr Ramsey had control and ultimate oversight of every aspect.
18 Pursuant to those arrangements, Mr Marshall recruited all of the general workforce at the abattoir and he was responsible for inducting all such persons. Mr Marshall reported, for some matters only, to the Plant Manager, Mr Michael Considine. I shall mention the circumstances of Mr Considine's engagement in a short while. Mr Ramsey was directly involved in selection of personnel with a management, administration or engineering role. Mr Marshall carried out his function as Personnel Officer for any and all of the companies who employed general labour at the abattoir. He signed letters on the letterhead of those companies as the Personnel Officer for the company in question.
19 Ms Park was involved in the day to day administration of the abattoir's affairs. In that role she raised invoices for payment, dealt with payment of accounts (including statutory obligations like taxation, workers compensation insurance and superannuation) and attended to banking, particularly transfers between the accounts of the various companies, whether Ramsey Group companies or so-called service or labour hire companies. On the evidence in the present case, all those matters were under her direct control, subject only to the directions of Mr Ramsey.
20 Mr Considine was engaged to work at the abattoir in about August 2005 as the Plant Manager. He remained in that position until 7 November 2008. Prior to his engagement, he had known Mr Ramsey for about 30 years. At the time of his engagement Mr Considine suggested that he should be engaged at the abattoir through his family company, Drama Pty Ltd ("Drama"). It is not necessary in the present case to evaluate the legal effectiveness of that method of engagement. Mr Ramsey agreed to obtain Mr Considine's services in this way. Initially, the arrangement was oral but on 1 July 2006 a formal contract was executed between Ramsey Food Processing and Drama for the provision of Mr Considine's services. From the time of his engagement, Mr Considine was second in charge at the abattoir under Mr Ramsey. He was in charge of the daily operations at the abattoir and would ring Mr Ramsey at about 6.00 am every day, having himself arrived at work at about 5.20 am. Mr Considine gave evidence that Mr Ramsey generally attended the abattoir one to two days a week and was almost always there on Tuesdays when he would scrutinise the wages records and all accounts. Although he was second in charge of the abattoir, Mr Considine's duties were operational in nature and, with rare exceptions, he did not become involved directly in hiring or dismissing employees. That was Mr Marshall's role, subject to Mr Ramsey's overall control as manager of Ramsey Food Processing.
21 As noted earlier, Mr Marshall's letter to employees dated 16 October 2006 referred to the possibility of engagement by Tempus. Mr Considine's evidence included the following:
23. In early October 2006, whilst I was at the abattoir, Mr Ramsey came up to me and asked me to step outside with him. We walked out and stood leaning on a boot of car just outside his office. Words to the following effect were spoken:
SR: there is a Federal Court case that I have lost and I need to acquire a shelf company to provide labour to Ramsey Food Processing so the business can continue. Otherwise I don't know if I can continue running the abattoir. Are you interested to take on the labour hire company and take over the employees currently employed on the same terms and conditions of employment, still being the Plant Manager.
Me: Will you give me an undertaking that I as sole director of this company will not be responsible for any debt or wages or workers compensation and such?
SR: yes I will get Frank (Hannigan) to draw it up.
Me: OK I will do it.
SR: Frank will organise for you to be director of the shelf company.
22 I accept Mr Considine's evidence about this and other matters. He gave his evidence in a straightforward way without embellishment and made no attempt to minimise his own role in the events with which I am concerned or to deflect criticism for his own conduct. Where his evidence conflicts with Mr Ramsey's account I prefer Mr Considine's evidence.
23 Mr Frank Hannigan was Mr Ramsey's solicitor. He was a principal of Hannigans, a firm of solicitors with an office in Casino, New South Wales (as well as elsewhere), which has acted for Mr Ramsey throughout the events already referred to and those to which reference will later be made, including the present proceedings. Tempus had been registered as a shelf company on 21 August 2006. Hannigans arranged for Drama to become the sole shareholder of Tempus and for Mr Considine to be its director and secretary effective from 17 October 2006. The relevant documents were signed by Mr Considine on 24 October 2006.
24 Part of the arrangements agreed between Mr Ramsey and Mr Considine was that Tempus would be indemnified for all liabilities. Mr Ramsey accepted that was so in his oral evidence. Apart from his acceptance of that fact, and the content of the conversation set out above, there were two documents in evidence which reflected this arrangement. One was a deed dated 16 October 2006 executed by Mr Ramsey on behalf of Ramsey Food Processing and Mr Considine on behalf of Tempus. Their signatures were witnessed by Mr Marshall and the seal of each company was affixed. The second was a document in the same terms dated 19 May 2007. It was also executed by Mr Ramsey and Mr Considine and witnessed by Mr Marshall. It bears no sign of the seal of either company. It was evidently executed and witnessed separately from the first document. Both Mr Considine and Mr Ramsey proceeded in their own evidence upon the basis that a deed in the terms of the two documents was in place. The operative provisions of the deed were as follows:
BETWEEN the Party described in the First Schedule (hereinafter called "Ramsey") of the One Part AND the Party described in the Second Schedule (hereinafter called "Tempus") of the Second Part.
WHEREAS:-
1. Ramsey conducts and manages a food processing business.
2. Ramsey requires labour.
3. Tempus has appropriate labour available to man the business managed by Ramsey.
4. The parties have agreed that Tempus shall supply labour on the terms and conditions provided herein.
NOW THIS DEED WITNESSES that in consideration of mutual promises between the parties the following is agreed:-
1. Tempus shall supply appropriate staff to Ramsey on a day to day basis.
2. Ramsey shall pay Tempus all outgoings associated with the supply of labour which shall include wages, staff entitlements, administration and workers compensation.
3. Ramsey hereby indemnifies Tempus for all suits, claims, actions and damages in respect of any liability whatsoever which Tempus may incur in relation to the employment of staff on the South Grafton Abattoir site.
Schedule 1
Ramsey Food Processing Pty Ltd (ACN 082 062 468)
Schedule 2
Tempus Holdings Pty Ltd (ACN 121 335 395)
25 The matters which are set out in cl 4 of the recitals and in cl 2 of the operative provisions bear some further comment. It was the evidence in the present proceedings of both Mr Considine and Mr Ramsey that no payment was made to Tempus for the services supposedly provided to Ramsey Food Processing other than such payments as were necessary to put Tempus in funds to discharge obligations which nominally had been assumed by it. The practice was that invoices would be raised by Ms Park in the name of Tempus, to reflect obligations assumed by Tempus. Payments would then be made into the Tempus bank account by Ramsey Food Processing to permit Tempus, in turn, to meet the obligation when it was due. Those obligations included net wages to employees, PAYG payments to the Australian Taxation Office, GST payments to the Australian Taxation Office, superannuation contributions required to be made on behalf of employees and some other expenses. Only so much money as was required to meet an immediate liability was transferred from the bank account of Ramsey Food Processing (administered by Ms Park) to the bank account of Tempus (also administered by Ms Park). For example, an amount equivalent to net wages only for employees was electronically transferred in time (but no earlier than necessary) for that money to be transferred by Ms Park from the Tempus bank account to the employees in question, again electronically. Where relevant invoices raised in the name of Tempus identified PAYG payments, payment by Ramsey Food Processing was deferred until payment by Tempus was due to the Australian Taxation Office. Similarly, any GST liability on services supposedly provided by Tempus was not reflected in money transferred to Tempus until such money was required to be transferred by Tempus to the Australian Taxation Office. The same thing happened with superannuation contributions. Correspondingly, any money which might find its way into the Tempus bank account from some other source was recovered promptly or reflected as a credit due to Ramsey Food Processing against which any transfer from Ramsey Food Processing was offset. That included wage subsidies, workers compensation reimbursements and even small amounts of bank interest credited to the Tempus account. It is worth noting now that, apparently pursuant to this operating principle and arrangement, at a later time (after Tempus was supposedly placed into voluntary administration) an $80,000 refund of workers compensation premiums was recovered from the Tempus bank account and transferred to the account of Ramsey Food Processing at Mr Ramsey's direction. That amount would have been more than sufficient to meet the monetary claims in the present proceedings. Upon what legal foundation (if any) that step was taken remained unexplained. The practical effect was to strip the funds from Tempus to reflect an obvious belief that none of the money passing through its bank account, in one direction or another, was ever its property, but was the property of Ramsey Food Processing.
26 The result of the practices followed at the direction of Mr Ramsey was that money passed through the Tempus account only so often and to such an extent as was necessary to shortly thereafter discharge the obligations assumed by Tempus. Those were in truth nothing more than clerical arrangements. For all practical purposes the Tempus bank account was treated as an account within the Ramsey Group. I am satisfied, on the whole of the evidence, that those arrangements were adopted so as to give colour to the proposition that it was Tempus, rather than Ramsey Food Processing, which was legally liable for those payments. The effect of Mr Ramsey's evidence was that similar practices had earlier been followed with respect to the four companies within the Ramsey Group used to employ labour at the abattoir before late 2006.
27 At about the time, or shortly after, that Mr Marshall's letter of 16 October 2006 was given to employees at the abattoir, Mr Considine conducted meetings with employees prior to their shift start time. His evidence was that he did so at Mr Ramsey's request. He said Mr Ramsey had a list of employees who would transfer to Tempus and those whose employment would be terminated. Mr Ramsey denied responsibility for the list. Although Mr Ramsey said that it was up to Mr Considine as to which employees Tempus would engage, I am satisfied that Mr Ramsey intended and knew that most employees would be offered employment by Tempus but some would not. Whether the specific decisions as to who would not be offered employment were made by Mr Marshall, Mr Considine or Mr Ramsey they were, in my view, made on behalf of Ramsey Food Processing and Mr Ramsey either directed or acquiesced in them. Nine of the 11 employees whose circumstances are the subject of complaint in the present proceedings were transferred to the books of Tempus at about this time. Two were employed at the abattoir subsequently, also as the apparent employees of Tempus.
28 On the evidence, apart from this nominal change in employer, which gave effect to the method chosen by Mr Ramsey to deal with the obligations arising from the orders made by this Court on 4 October 2006, nothing changed for employees who were allowed to remain in employment. Mr Considine did not acquire any responsibility or authority which he did not already possess as Plant Manager. He did not take on, nor was it contemplated that he would do so, any role concerning the recruitment or (in general) dismissal of employees. He did not become concerned in any new aspect of personnel management, notwithstanding the supposed employment of virtually the entire workforce by Tempus, notionally a company under his control and direction. Personnel functions continued to be performed by Mr Marshall subject only to direction by Mr Ramsey. Nor did Mr Considine become involved in any other aspect of the administration of the affairs notionally being conducted in the name of Tempus. Administrative matters were within the exclusive province of Ms Park, subject only to Mr Ramsey's overall authority.
29 If the true position arising from Mr Marshall's letter of 16 October 2006 had been that one employment relationship ceased and a new one commenced, payment of accrued entitlements would have been necessary and could not legally be avoided. At the time of notional transfer from one of the employing companies to Tempus many (probably virtually all) employees undoubtedly had accrued entitlements standing to their credit. Annual leave is the most obvious one. None of those entitlements were paid. Instead, book entries were made showing the credits as thereafter owed by Tempus.
30 Despite the transfer in October 2006 of all ongoing employees to the books of Tempus it is clear from the evidence that this was not seen as something which would inhibit further changes to employment arrangements at the abattoir if Mr Ramsey felt them to be necessary or desirable. In early 2008, Mr Ramsey judged that it had become inconvenient to retain certain of the abattoir employees on the books of Tempus. The reason assigned by Mr Ramsey in his evidence was that he thought that workers compensation premiums were being incurred at an unnecessarily high level. The first change occurred to employees in the offal and tripe room. On 22 January 2008, Mr Considine signed letters on Tempus letterhead addressed to those employees. Mr Considine's evidence was that the letters were given to him by Mr Marshall for signature and were given back to Mr Marshall after they were signed for distribution to the employees concerned. The letters were in the following terms:
Please be advised that Tempus Holdings Pty Ltd will cease supplying labour for offal and tripe room employees at the South Grafton Abattoir on Monday 4th February 2008.
Paul Allen Contracting Services Pty Ltd will supply the labour, for this part of the operation from the above-mentioned date. Paul Allen Contracting Services Pty Ltd has indicated that they are willing to employ yourself under the same terms and conditions as you have previously been employed.
If you wish to accept their offer of employment, please sign the attached letter authorizing the company to transfer your employment and entitlements to Paul Allen Contracting Services Pty Ltd.
31 Similar steps were taken in late April 2008 with respect to employees in the boning room except that they were to be transferred to Mortimer Administration. Again letters on Tempus letterhead were signed by Mr Considine who said he did so having been handed the letters for signature. Those letters were in the following terms:
Please be advised that Tempus Holdings Pty Ltd will cease supplying Boning Room personnel at the South Grafton Abattoir on Monday 5th May 2008.
Mortimer Administration Services Pty Ltd will supply labour, for this part of the operation from the above-mentioned date. Mortimer Administration Services has indicated that they are willing to employ yourself under the same terms and conditions as you have previously been employed.
If you wish to accept their offer of employment, please sign the attached letter authorising the company to transfer your employment and entitlements to Mortimer Administration Services Pty Ltd.
32 It also appears that some employees engaged directly at Mr Ramsey's "Turangga Farm" appeared on the books of Tempus. Mr Considine denied any involvement in those arrangements. Mr Ramsey subsequently directed that the employees in question should be transferred off the Tempus books. Mr Considine's evidence was that Mr Marshall also handed him those letters, on Tempus letterhead, to sign. The letters were undated but were in the following terms:
Please be advised that Tempus Holdings Pty Ltd will cease supplying labour for Turangga Farm.
Ramsey Pastoral Company Pty Ltd will now supply the labour, itself for this enterprise. Ramsey Pastoral Company Pty Ltd has indicated that they are willing to employ yourself under the same terms and conditions as you have previously been employed.
If you wish to accept their offer of employment, please sign the attached letter authorizing the company to transfer your employment and entitlements to Ramsey Pastoral Company Pty Ltd.
33 On 7 November 2008, Mr Considine and Mr Ramsey had a disagreement. In his oral evidence Mr Ramsey disclaimed any recollection of the nature of the disagreement although he did appear to recall something of the events which followed. Mr Considine said in his evidence that Mr Ramsey had, for the first time, directly challenged Mr Considine's competence. I infer that this was not an infrequent occurrence in Mr Ramsey's relations with other people. Mr Considine said he left the abattoir on that day (Friday), leaving the keys with Mr Ramsey but, having spoken with Mr Ramsey over the weekend, came to work as usual the following Monday morning. Mr Ramsey rang the abattoir at 6:00 am and Mr Considine answered. Mr Ramsey expressed surprise that Mr Considine was at the abattoir and suggested he leave. Mr Considine did so. Mr Ramsey and Mr Considine did not agree about whether Mr Considine spoke with Mr Ramsey face to face later in the day or, as Mr Ramsey suggested in his evidence, by telephone a few days later. However, they did agree that there was some discussion which involved the premise that Mr Considine would need to be replaced as director of Tempus. Mr Considine denied any further involvement in the affairs of the abattoir or Tempus (apart from later resigning as director) from 7 November 2008. I am satisfied that he did not have any further involvement. In due course Mr Hannigan provided Mr Considine with such documentation as was necessary to transfer all Mr Considine's (and Drama's) interests in Tempus to Mr Warren Park who also lived at "Turangga Farm". Mr Considine and Mr Ramsey agreed that they did not speak again for at least the following 12 months. However, administration of the affairs of Tempus continued uninterrupted for the time being. Vouchers were still raised, bank transfers occurred and wages were paid.
34 On 24 November 2008, Mr Marshall sent a letter to Tempus employees on the letterhead of Ramsey Food Processing. Mr Marshall signed the letter as "Personnel Officer". The letter was in the following terms:
Tempus Holdings Pty Ltd will on 28 November 2008 cease to be a labour hire company, supplying labour to our company.
If you are interested in further employment, please obtain an employment application form from the front office for employment with Paul Allen Contracting Services Pty Ltd, and return it as soon as possible.
35 The following day Mr Marshall sent a letter dated 25 November 2008 on Tempus letterhead to Tempus employees, including the complainant employees in the present proceedings. Again the letter was signed by Mr Marshall as "Personnel Officer". It was in the following terms:
Tempus Holdings Pty Ltd will this week cease to be a labour hire company providing labour for Ramsey Food Processing Pty Ltd. Accordingly, we are unable to offer you any ongoing employment.
36 At least a number of the complainant employees applied to Paul Allen Contracting for further employment. All of those employees who applied were unsuccessful, although many employees at the abattoir were taken onto the books of Paul Allen Contracting. In the case of unsuccessful applications a letter was sent on the letterhead of Paul Allen Contracting signed by Mr Marshall and dated 30 November 2008. Mr Marshall signed again as "Personnel Officer". The letters said:
We refer to your recent application for employment with Paul Allen Contracting Services Pty Ltd.
Please be advised that unfortunately your application for employment has been unsuccessful.
37 However, the bulk of the workforce at the abattoir became "employed" by Paul Allen Contracting in this way. As in 2006, accrued entitlements were not paid, as would have been necessary in a real change of employment. In the leave management records which were maintained for various companies (Paul Allen Contracting, Mortimer Administration, Tempus and Ramsey Pastoral) the following amounts are shown as being transferred from Tempus as a liability and transferred to Paul Allen Contracting as a liability between 30 November 2008 and 31 December 2008: annual leave - $122,781.86; sick leave - $47,436.99; long service leave - $105,051.67; and accountable long service leave - $64,964.96. Those book entries are consistent with the earlier pattern when employees were notionally transferred to the employment of Tempus. The same record shows as remaining liabilities in the name of Tempus as at 31 December 2008: annual leave - $29,989.82; sick leave - $11,777.66; long service leave - $24,647.80; and accountable long service leave - $16,112.53.
38 Despite the fact that Tempus had the benefit of an unqualified indemnity from Ramsey Food Processing with respect to all its obligations arising out of the "supply of labour" to Ramsey Food Processing, Mr Ramsey directed, on his evidence in the present proceedings, that no such obligations were to be satisfied or payments made. There appear to have been one or two exceptions made in February 2009, but they were exceptions to this general rule. Mr Ramsey's explanation for the fact that no payments were made to the complainant employees of amounts clearly outstanding was that no request had been made to Mr Marshall for such a payment and/or that no invoice had been raised referring to such a payment. I did not believe him and I reject this explanation. In my view, any outstanding and unsatisfied entitlements, including those sought in the present proceedings, were not honoured because Mr Ramsey decided they would not be.
39 None of the complainant employees whose position requires examination in the present proceedings obtained ongoing employment at the abattoir. Each was a permanent employee. Each lost his or her job. I am satisfied that the letters from Mr Marshall dated 25 November 2008 on Tempus letterhead to which I have referred were effective to bring the employment of the complainant employees to an end effective on 28 November 2008. Those letters were effective to bring their employment to an end regardless of which company was their employer.
40 According to evidence in the present proceedings given by Mr Ramsey, Ramsey Food Processing ceased to trade at the end of February 2009. Ramsey Meats then became the operating company for the abattoir in place of Ramsey Food Processing. That change occurred shortly after complaints began to be made by the employees whose entitlements arise for consideration in the present proceedings and the applicant began the enquiries which have led to the present proceedings. As I mentioned earlier, Mr Ramsey ceased to be a director of Ramsey Food Processing shortly after the respondents' defences were filed in the present proceedings and other changes were also made to the nominal management of Mortimer Administration at around the same time.
41 It seems possible that the change to the operational control of the abattoir was made to minimise the potential exposure of Ramsey Food Processing to the possible outcome of the present proceedings. An inference to that effect would be available having regard to the pattern of conduct employed by Mr Ramsey to deal with the exposure of companies in the Ramsey Group to legal liability following the proceedings before Greenwood J. Whether that inference should be drawn does not require attention at the moment. If steps are, or have been, taken with respect to the conduct of the affairs of Ramsey Food Processing, and with respect to its assets, which are intended to have the effect of defeating legitimate claims made against it, that would require attention outside the present scope of the proceedings. Any such issues would have to be determined on all the evidence then available.
42 Tempus remained in the nominal ownership of Drama, with Mr Considine as its director and secretary, until 9 January 2009 when Mr Warren Park (who was employed by Ramsey Pastoral) became formally the sole shareholder, director and secretary. The change of ownership and directors was accomplished with the legal assistance of Hannigans. Tempus went into voluntary administration a short time thereafter, apparently towards the end of March 2009. This, like the apparent cessation of trading of Ramsey Food Processing, occurred in the early stages of the investigation by the applicant which led to the present proceedings. Mr Hannigan completed a questionnaire for Tempus, administered by the voluntary administrator which he despatched with a letter dated 1 April 2009. Mr Hannigan identified himself as a director of Tempus from 13 February 2009. He represented that the business of Tempus ceased on 30 November 2008 at a time when monies were owing to employees in the sum of $41,784.94. Mr Hannigan, however, also referred to the expected receipt of a workers compensation refund, which would be available to meet claims of creditors. I referred to this earlier. When received, that money ($80,000) was removed from the Tempus bank account and transferred to Ramsey Food Processing.
43 A liquidator was later appointed to Tempus on 10 March 2010. A return provided by Mr Park on 24 March 2010 identified a sole asset of a bank deposit with the National Australia Bank of $63.62. In a report dated 11 May 2010 the liquidator estimated assets at zero and total liabilities of $107,601.81.