Health Services Union of Australia v Gribbles Radiology Pty Ltd [2002] FCA 856 | Case summary

20 For some years prior to 31 August 1997, imaging services at the Clinic were provided by Southern Radiology. On 31 August 1997, Southern Radiology ceased to provide those services. On 1 September 1997, MDIG began providing those services at the Clinic. MDIG continued to be the service provider until 20 August 1999. Very shortly after that date (there may have been a weekend in between), the respondent began to provide imaging services at the Clinic. On 3 July 2000, the respondent scaled back the services it provided at the Clinic, because it did not consider the operation to be sufficiently profitable. Subsequently, it ceased to provide them altogether. 21 Among the people employed by Southern Radiology as medical imaging technologists at the Clinic were four qualified radiographers, Susan Padey, Suzanne Williams, Margaret Fowler and Louise Pollard ("the four radiographers"). The precise dates of the commencement of their periods of employment with Southern Radiology are not of concern in this proceeding. Ms Padey and Ms Fowler worked for an earlier provider of radiography services at the Clinic. None of the four radiographers was employed full-time at the Clinic. Each engaged in radiography work at another location or other locations, either for Southern Radiology or for other employers. 22 The work at the Clinic was organised on a roster, which included other employees of Southern Radiology. The purpose of the roster was to ensure that imaging services were provided at times when the Clinic was open. Each of the four radiographers had her own work periods within the roster. These were regular, although the work times for a particular employee might change from time to time. Thus, Ms Padey worked a shift every Thursday and a shift every second Tuesday. Ms Williams worked permanent shifts, which varied from time to time. Ms Fowler also experienced changes, but settled on regular shifts on alternate Tuesday and Friday evenings and Saturday afternoons. Ms Pollard's position was slightly different. She had a regular shift at a different site with Southern Radiology, and did relieving work at the Clinic. 23 Because of the regular rostered shifts, each of the four regarded herself as employed by Southern Radiology on a permanent part-time basis, and not as a casual. If unavailable to work a particular shift, each of the four radiographers saw it as her responsibility to find someone else employed by Southern Radiology to fill that shift. This was usually done by exchanging shifts with another employee and then advising those responsible for keeping employment records for Southern Radiology. Only if a particular radiographer could not find anyone else willing to take a shift for which she was unavailable would she advise the management of Southern Radiology, who would then attempt to find someone to fill that shift. In the case of Ms Fowler, there were extended periods when she "gave" her shifts to someone else because an exchange of shifts was too complicated. When she became available again, she returned to work the very same shifts she had worked prior to her periods of unavailability. Because of the permanent rostered nature of the employment, none of the four radiographers regarded herself as employed as a casual. Each received payment at the rate of 25 per cent more than the ordinary time rate under cl 6 of the Award. Ms Padey and Ms Fowler saw this as compensation for loss of entitlements to leave. Ms Williams understood that the 25 per cent loading was applicable to persons who worked less than twenty hours per week. None of the four had any entitlement to paid sick leave, public holidays or annual leave. If they wished to take holidays, they arranged for other employees to fill their shifts. 24 By circular dated 13 August 1997, Southern Radiology informed "All Radiographers, Heritage sites" of its gratitude to them "for their support whilst working for Southern Radiology at the Heritage sites over the last few years." The letter continued: "It is with regret that we have been informed that MDIG are taking over some of the sites as of 1st September, 1997. We understand that a number of our radiographers have been approached to work at different locations other than Heritage and we therefore felt it was timely to circulate this notice to this end. While we do not have enough shifts to offer all Heritage radiographers we are keen to ascertain who would like to continue working for us in the future. To this end, we would be grateful if anyone keen to go on the 'waiting list' for positions could complete the form below and either fax (9553 2374) or send the details via the courier system to Lyn and Steph at South Road. We are also under the impression that staff are required to divulge to MDIG as to where else they are working. We would strongly recommend that you do not divulge this information to them as it may be to your detriment. Some companies do not allow their staff to work for other companies other than themselves but this has never been the policy at Southern Radiology." 25 Before commencing the provision of imaging services at the Clinic, MDIG wrote to the radiographers on 27 August 1997. The letter informed each radiographer that MDIG would be providing the radiology services for the Clinic as from 1 September 1997. It offered the recipient the opportunity to join MDIG and: "continue your existing roster at the Heritage Clinics. You may wish to extend your hours and your expertise by working at other MDIG Branches. This is a matter you should discuss with our Regional Chief Radiographer, Mr. Trevor Harlow. Your employment status will be on a casual basis as a Medical Imaging Technologist and the following pay rates would apply: Day/Evening Rate = $23.01 per hour Weekend Rate = $32.12 per hour Evening Shift Allowance = $12.80 As the pay rates include an entitlement loading, no payment will be made for annual leave, sick leave and public holidays." 26 Each of the four radiographers was cross-examined as to the significance of the phrase "on a casual basis" in this letter. Ms Pollard could not recall receiving the letter. The other three regarded the reference to "a casual basis" as a reference to the rate of pay. Each of them continued to regard herself as being employed on a permanent basis with respect to her rostered shifts. 27 After MDIG began providing imaging services at the Clinic, the rostering arrangements continued as they had with Southern Radiology. The rosters were prepared by Mr Harlow in the Blackburn Office of MDIG. The number of shifts Ms Pollard worked at the Clinic increased gradually. Ms Williams changed the shifts she worked to every second Wednesday and every second Friday from 10.00 am to 2.00 pm and from 6.00 pm to 9.00 pm. The rosters of the other two of the four radiographers did not change, at least at the outset. The practice whereby each radiographer would arrange a substitute if she were unavailable for a shift continued as before, with notification of the change being given to Mr Harlow. Ms Fowler undertook some relief work at an MDIG clinic in Cheltenham. Ms Pollard continued her work for Southern Radiology at another site. 28 By letter dated 20 August 1999 (or, in the case of Ms Williams, 23 August 1999), the respondent offered each of the four radiographers employment as a permanent part-time radiographer. Each letter indicated an intention to offer its recipient the same rostered shifts as she was then working. Each of the four radiographers accepted and continued to work her rostered shifts. Ms Padey said that her regular hours underwent change; the starting and finishing times were brought forward half an hour. The rosters were prepared by Pat Matthews in the office of the respondent. If one of the four radiographers exchanged a shift with someone else, they would notify Ms Matthews. Ms Fowler said that Ms Matthews sometimes rostered them for the wrong days but in fact they continued to work the days they normally worked and Ms Matthews was happy with that. Ms Padey and Ms Fowler began to work shifts at Elwood for the respondent. Ms Williams and Ms Pollard continued to work for Southern Radiology at another site. 29 The changes of employer in 1997 and 1999 did not have a significant effect on the way in which the provision of radiography services at the Clinic was conducted. In substance, the same people performed the same work for the different employers. Signs at the reception desk, and possibly outside the Clinic, were changed to reflect the changes in the service provider. The addresses to which the radiographers forwarded some of the images for examination and report, and their own time records, changed. The equipment remained the same, with the exception that the respondent added one or two items of furniture and a computer. The computer was intended to be linked with the respondent's office, but the evidence is that it was not used. 30 By letter dated 25 May 2000, the respondent advised each of the four radiographers as follows: "Due to recent fee cuts and subsequent analysis of work loads at the Heritage clinics at Moorabbin and Elwood we have decided to revert to day time weekday shifts only. Starting July 1st 2000, we will be providing Radiology services at Moorabbin and Elwood from 10am - 6.00pm Monday to Friday only. If you wish to participate in these new rosters please contact Pat Matthews on 9783 8722 by Wednesday 31st June 2000." 31 This was followed by a letter dated 5 June 2000, in each case in the following terms: "Further to our recent communications I wish to advise that your current rostered hours are redundant as at 1st July 2000. As your participation in other rosters has been declined by you please accept this letter as one months-official [sic] notice. For the period of notice all shifts will be paid up to and including Monday, 3rd July 2000. I wish to take this opportunity to thank you for your support over the past months." 32 It is not in dispute that the respondent has not paid any of the four radiographers severance pay in accordance with cl 37(c) of the Award. Nor is it in dispute that, if the respondent is obliged to pay such severance pay, the amounts concerned are $1,008 for each of Ms Padey, Ms Fowler and Ms Pollard and $1,344 for Ms Williams. 33 Because the respondent is not named as a party to the Award in cl 48 of the Award, it is only bound by the Award if it is a "successor, assignee or transmittee" of part of the business of MDIG, within the meaning of s 149(1)(d) of the Act. If it is so bound, then cl 37 of the Award applies to the respondent. Clause 37(l) would oblige the respondent to pay severance pay based on the service of each of the four radiographers with MDIG if the respondent is a "transmittee" for the purposes of cl 37(l). MDIG was bound by the Award as a named party, so no issue under s 149(1)(d) of the Act applies to the change from Southern Radiology to MDIG. If MDIG were a "transmittee" from Southern Radiology, within the meaning of cl 37(l) of the Award, then the respondent would be obliged to pay severance pay calculated by reference to the total period of employment of each of the four radiologists with Southern Radiology, MDIG and the respondent. The definition of "business" in cl 37(l)(ii) includes part of the business and the definition of "transmission" in the same place includes transfer, conveyance, assignment or succession. Similar issues therefore arise as to the change from MDIG to the respondent, for the purposes of both s 149(1)(d) and cl 37(l). Issues of a like kind also arise with respect to the change from Southern Radiology to MDIG, but they arise only with respect to cl 37(l). No reason was advanced as to why the terms of the Award should be construed differently from those of the Act. 34 The evident purpose of s 149(1)(d) of the Act is to prevent the deprivation of the rights of employees under awards by the simple device of substitution of the employer by another employer not named in the award or party to the industrial dispute in settlement of which the award has been made. The provision is not expressly conditioned, however, on the existence of any intent to evade award obligations. In accordance with its purpose, s 149(1)(d) should be construed broadly, not strictly. See North Western Health Care Network v Health Services Union of Australia [1999] FCA 897 (1999) 92 FCR 477 at [29] per R D Nicholson J and [86] per Madgwick J. Their Honours expressed the view that, although the words "successor, assignee or transmittee" might be susceptible in other contexts of technical meanings, it is inappropriate in the context of s 149 of the Act to apply such technical meanings. See also Australian Rail Tram and Bus Industry Union v Torrens Transit Services Pty Ltd [2000] FCA 1683 (2000) 105 FCR 88 at [54]. 35 Section 149(1)(d) and earlier corresponding provisions have not produced a large body of authoritative decisions. Yet there must be many instances in which a business, or part of a business, have passed from one employer to another. The answer may be that, in most cases of that nature, it will be obvious that the provision applies and that the recipient employer is bound by the award. In recent years, the propensity of governments to privatise aspects of their activities has brought the provision into focus. North Western Health Care is an example. So is Minister of State for Employment, Workplace Relations and Small Business v Community & Public Sector Union [2001] FCA 316 (2001) 109 FCR 303 ("the Employment National Case"). In both cases, what had been government activities came to be carried on by non-government entities. In both cases, Full Courts held that the non-government entities were bound by the awards or agreements that had previously bound the relevant government agencies. 36 The practice of "contracting out" services previously performed by employees of an employer conducting a business has also given rise to questions as to the application of s 149(1)(d). The leading case is the judgment of the High Court of Australia in PP Consultants Pty Limited v Finance Sector Union of Australia [2000] HCA 59 (2000) 201 CLR 648. The more recent case of Stellar Call Centres Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union [2001] FCA 106 (2001) 106 FCR 302 may also be considered an example of private sector contracting out. It concerned the operation by another company of a call centre, under a contract with Telstra Corporation Ltd. 37 It can be seen from these authorities that the concentration in the application of s 149(1)(d) has been on the issue of whether the activities conducted by the new employer have sufficient identity with those conducted by the former employer that it is possible to characterise what is done by the new employer as the "business", or part of the "business", of the former employer. In the present case, that can hardly be said to be an issue. The activities conducted at the Clinic by MDIG were precisely the same in every relevant respect as those conducted by Southern Radiology. Again, in substance, the activities conducted at the Clinic by the respondent were precisely the same in all relevant respects as those that had been conducted by MDIG. The addition of a couple of items of furniture and a computer could not be said to be significant. Nor is there any question that the activities conducted at the Clinic were activities of a business nature. They were commercial activities, involving the provision of services with a view to deriving revenue and, ultimately, profit. 38 The focus in the present case was therefore bound to be on the process by which the respondent came to carry on the activities at the Clinic, for the purpose of determining whether it was the successor, assignee or transmittee of MDIG. The evidence discloses that the respondent acquired its entitlement to carry on the activities by means of an agreement in writing, dated 11 August 1999, between the respondent and a company called Region Dell Pty Ltd ("Region Dell"), which, according to the agreement, traded as Heritage Clinics. By the agreement, the respondent was obliged to provide a radiology practice to Heritage Clinics at three locations, one of which was Moorabbin. The service to be provided by the respondent was to make available a qualified radiographer for the sessions specified in the agreement and to provide all radiology consumables and supplies. The respondent was also to be responsible for the maintenance and repair of all the radiology equipment and to make available a radiologist to report on the x-rays it took. Region Dell was obliged to provide the radiology equipment specified in the agreement, non-exclusive use of reception facilities for the taking of appointments and completion of patient paperwork, power, lighting, heating, general cleaning, a telephone extension to a central switchboard, and reasonable access to medical professionals engaged by Region Dell at each clinic. The agreement was for a term of six months from 1 September 1999 and provisions were made for negotiation for extension of the term of the agreement and extensions to other clinics. So far as the evidence goes, beyond the possible communication of names and other information about employees engaged at the Clinic, the respondent had no dealings with MDIG. The respondent made its own employment offers to the employees, who (unless they were employed by MDIG at other sites) ceased to be MDIG employees. 39 Counsel for the respondent contended that, in the absence of some direct transaction between MDIG and the respondent, the respondent could not be said to have become a successor, assignee or transmittee of any part of the business of MDIG. To determine the correctness of this proposition, it is necessary to examine the authorities in some detail. 40 The starting point is necessarily PP Consultants. That was a case in which a bank had closed its branch at Byron Bay and had then begun conducting its business through an agent, which conducted a pharmacy business in the same place. At [14] - [15], Gleeson CJ, Gaudron, McHugh and Gummow JJ said: "The question whether one person has taken over or succeeded to the business or part of the business of another is a mixed question of fact and law. For this reason and, also, because 'business' is a chameleon-like word, it is not possible to formulate any general test to ascertain whether, for the purposes of s 149(1)(d) of the Act, one employer has succeeded to the business or part of the business of another. Even so it is possible to indicate the manner in which that question should generally be approached, at least when a non-government employer succeeds to the commercial activities of another non-government employer. As already indicated, special considerations apply when one government agency succeeds to the activities of another. And there may well be other considerations where a government contracts with a non-government body for the performance of functions previously carried out by a government authority. 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." 41 At [19], their Honours said: "It is correct to say that, in conducting the branch agency, the appellant is involved in banking activities. It is not, however, correct to say that it is carrying on banking business. It is carrying on the business of a bank agent. Moreover, the Bank has not disposed of any part of its business. All that has happened is that the Bank has changed the method by which it carried on its banking business in Byron Bay. Thus, no part of the Bank's business has been acquired by the appellant, whether as successor, assignee or transmittee." 42 Callinan J also held that the bank had not disposed of any part of its business to anyone, but that the business carried on was an agency business, and therefore one of a different kind from that formerly carried on by the bank. At [38], his Honour drew the distinction between the transfer of governmental activities from one branch of government to another or from government to the private sector. His Honour said: "The courts were not therefore required to identify or analyse the nature and components of a 'business' in the orthodox sense of the word and in the context of a conventional business environment." 43 It can be seen that, in PP Consultants, the High Court was dealing with the question of the identity between what was carried on after the change and what had been carried on before it. It was not attempting to chart the outer limits of the concept of a successor, assignee or transmittee, even when only the private sector is involved. It simply did not deal with that issue. There are other authorities that deal more directly with it. 44 Bransgrove v Ward and Syred [1931] AR (NSW) 272 was a case in which an employer sought to resist a claim under a New South Wales industrial award on the basis that it was bound by a federal award and the state award excluded employers so bound. It appeared that two persons who were bound by the award had carried on the business of a cinema at a particular address until a particular date. A few days later, the defendants began conducting a cinema business at the same address. The New South Wales Industrial Commission held that the defendants were not the successors of the earlier proprietor of the business. They had had no dealings with the former proprietor. The Commission said: "To constitute successorship there must be some definite legal nexus or privity between a respondent to the Federal award who is the predecessor, and a successor who then, by virtue of the Commonwealth statute, becomes bound by the award. The existence of that nexus or privity must be evidenced either by direct proof of a transaction or by facts from which the conclusion may be drawn of some transference of right to the business from the predecessor to the successor." 45 Barrow v Masonic Catering Co-Operative Society Limited [1957] AR (NSW) 736 was another case in the Industrial Commission of New South Wales. It concerned catering at a Masonic Temple. The appellant Barrow had been employed by one Tressider, who had a contract with the trustees of the Masonic Temple to provide the catering. Tressider's contract came to an end and the trustees contracted with the co-operative society, which took over three employees of Tressider and to which Tressider sold certain plant and stock. The Commission held that there was no transmission of a business or part of a business from Tressider to the co-operative society as, by then, Tressider had no business to transfer. The essential element of his business was the right to occupy part of the premises and to supply catering services to persons who came to them. Those rights had expired. At 739, the Commission said: "In no sense was there any transfer of the catering rights from Tressider to the Society. The only legal transaction between Tressider and the Society was a sale by Tressider of certain plant and stock to the Society and such a transaction cannot be said to be a transmission of a business or a part thereof." 46 Torrens Transit Services was a case concerning the privatisation of public transport services. Mansfield J held that the private operator was bound by certified agreements to which the government enterprise previously operating the service was a party. After examining North West Health Services, at [54], his Honour said: "the 'substantial identity of activities' test is not of itself a sufficient test to determine if there has been a succession transmission or assignment of a business. I think that is plain enough in any event. For example, if the business of a local hardware store were simply to come to an end, and the premises were then some months later purchased and then operated by an entirely new and independent operator as a local hardware store in much the same way, with some one or more of the same employees, I do not think s 149(1)(d) would then have been intended to apply to the new operator of the hardware business simply because there was a substantial identity of activities being performed in the two businesses. Compare Bransgrove v Ward & Syred [1931] AR (NSW) 272. To conclude otherwise would be to attribute to the words 'successor transmittee or assignee' little or no meaning as the only focus would be upon the identity of the business activities. But I respectfully agree with the reasons given by R D Nicholson J and Madgwick J in that case for concluding that those words should be given a practical and broad meaning." It is plain that the example that his Honour gave could not be regarded as essential to the principle on which his Honour's judgment was based. 47 Stellar Call Centres was decided after the High Court had delivered judgment in PP Consultants. At [29], the Full Court quoted a passage from the judgment of the Full Court in PP Consultants, which was reversed by the High Court. At [30] - [31], the Court went on to say: "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. It is thus necessary to identify, within the confines of the case pleaded by the first respondent, what it is that the appellant is alleged to have taken over from Telstra." 48 The Court went on to hold that the contract that Telstra had entered into was a contract to supply services to Telstra that Telstra did not itself have the capacity to undertake without expanding its own call centre capacity. At [34], the Court said: "It cannot realistically be said, in our view, that the appellant has 'taken over' any commercial activities of Telstra." 49 The Employment National Case concerned the privatisation of employment agency functions previously carried on by the Commonwealth Government. The Full Court held that the contractors were bound by awards and an agreement which had previously bound the Government. In the course of a lengthy judgment, Ryan and Madgwick JJ discussed the meaning of the phrase "successor, assignee or transmittee" in s 149(1)(d). They referred to Bransgrove and to North Western Health Care. At [169] - [173], their Honours said: "The issue of succession, transmission or assignment, as distinct from the issue concerning 'part of a business' received little express attention in PP Consultants. However, it is apparent from the primacy accorded (at 655 [15]; 209 [15]) to the 'before and after' comparison and from the use of the lay terms 'taken over' (at 655 [14]; 209 [14]) and 'disposed of' (at 656 [19]; 210 [19]) in considering whether anything had passed from the first employer, that the joint judgment implies an aversion from any narrow or technical reading of the phrase 'successor, assignee or transmittee'. Neither did Callinan J appear attracted to a technical approach: see 663 [29], 215 [29]; 665-666 [39]-[43]; 217-218 [39]-[43]. At one end of the spectrum of circumstances to which ss 149(1) and 170MB can arguably apply is the case where the former employer who was a party to the industrial dispute, simply vacates the field of, or ceases to participate in, the activities to which that dispute related. The mere fact that one or more new employers adventitiously enter the area or begin to engage in the same or substantially similar activities would not, it seems reasonably clear, constitute the new employers as successors, assignees or transmittees of the former employer. What is required is some conduct or connection touching employment in the relevant activity from which can be imputed a sufficient relationship between the former employer and the new employer or employers. It would be undesirable to attempt, in the context of the present appeal, to compile an exhaustive catalogue of the circumstances which may combine in a given case to constitute a succession, transmission or assignment for the purposes of s 149(1) or 170MB. It is sufficient to record our satisfaction that at least by the following actions in combination, the Commonwealth clearly created a relationship between the former employer, CES/EAA, and the new employer, EN, of a kind which indisputably satisfies the test adumbrated in [170] of these reasons. In the first place, the Commonwealth instituted a competitive tender process which ensured that EN as 'a new public employment placement agency' would take over a substantial number of 'clients' and acquire an estimated share of the potential pool of such persons formerly serviced by CES/EAA. Secondly, the Commonwealth has transferred to EN leasehold property, equipment and other assets formerly controlled and used in the same way by CES/EAA. As well as making those assets available for the exclusive use of EN, the Commonwealth has given it, in common with the other 310 EPEs, access to certain intellectual property, namely the National Vacancy Database, which, since 1 May 1998 has been operated by the Department and has apparently been built upon a similar database to which, before 1 December 1997, CES had exclusive access." 50 Taken as a whole, these authorities do not establish that a direct, consensual transaction between the two employers is necessary before one can be regarded as the successor, assignee or transmittee of the business, or part of the business, of the other. Both Bransgrove and Barrow reveal a technical approach to the question whether there has been succession, assignment or transmission. Neither decision of the Industrial Relations Commission is binding on me. Both are inconsistent with the approach taken by this Court to the construction of the words "successor, assignee or transmittee". In my view it is the approach to those words that was taken by the Full Court in North Western Health Care that I am bound to follow. 51 So far as attempts were made to rely on the use of the phrase "taken over" by the majority, and the distinction drawn between the public and private sectors in PP Consultants, I am of the view that that case does not deal with the issue of the meaning of "successor, assignee or transmittee". It is plain that the concentration in that case was on the word "business" and the phrase "part of a business". As was pointed out in the Employment National Case at [169], the issue of succession, transmission or assignment received little express attention in PP Consultants. In that case itself, Ryan and Madgwick JJ referred to "some conduct or connection" and to "a sufficient relationship between the former employer and the new employer or employers". Their Honours did not attempt an exhaustive statement of what would constitute such conduct or connection, or such sufficient relationship, much less of what is a succession, transmission or assignment. It would be wrong to assume that the factors identified by their Honours in the course of deciding that there had been a succession, assignment or transmission in that case were suggested to be factors that must exist in every case. In Stellar, there was no question that there had been a transaction. The case turned on whether there was an identity between what had passed and what had been carried on before the transaction. Mansfield J's example in Torrens Transit Services, clearly obiter, may well be right. The mere coincidence that a business of the same kind is carried on at the same premises, after some time gap, would be unlikely to establish that there had been succession, assignment or transmission of the original business. His Honour did not, however, attempt to lay down any principle to the effect that a direct transaction is essential. 52 If the Court were to take a technical approach, and to hold that some direct transaction between the two employers were necessary to satisfy s 149(1)(d), the object of the provision would be evaded easily. For instance, it would be a simple matter for the first employer to transfer the right to conduct the business to a third party, not an employer, who could then transfer it to the new employer. There would be no direct transaction between the two employers, but the result would be precisely the same as if there had been. The presence of a third party cannot of itself exclude a factual situation from amounting to a succession, assignment or transmission. The use of the word "successor" in s 149(1)(d) suggests that there is not a need for a direct transaction. It is possible, even in the technical sense of the word, for one person to be the "successor" of another without any direct transaction between them. 53 In the present case, it seems that Region Dell was the effective controlling party in determining who was to provide the medical imaging service at the Clinic. The decision of Region Dell to enter into a contract with the respondent, in place of MDIG, had the effect of transferring the business of providing medical imaging services at the Clinic from MDIG to the respondent. That was its practical effect. What had been part of the business of MDIG became part of the business of the respondent. Similarly, in 1997, the agreement with MDIG had the effect of transferring that part of the business from Southern Radiology to MDIG. As far as the evidence goes, this was the way in which the situation was seen. There were numerous references to MDIG having "taken over" from Southern Radiology and to the respondent having "taken over" from MDIG. 54 It might be considered that rendering the respondent liable to make payments of severance pay to the four radiographers on the basis of their previous service with Southern Radiology and MDIG involved some unfairness to the respondent. It must be remembered that the respondent was under no obligation to employ those persons. No doubt it received real practical benefits from taking on a ready-made workforce. It had the benefit of the experience, qualifications and known availability at particular times of those persons. It is not unfair to regard it as having acquired obligations to those persons in relation to severance pay, along with the benefits received from engaging them. 55 For these reasons, I am of the view that s 149(1)(d) of the Act operated to bind the respondent to the Award as a successor, assignee or transmittee of part of the business of MDIG. I am also of the view that, for the purposes of cl 37(l) of the Award, the respondent was a "transmittee" of that part of the business of MDIG that involved the provision of radiography services at the Clinic. Similarly, MDIG earlier was a "transmittee" of that part of the business of Southern Radiology that involved the provision of radiography services at the Clinic. It is therefore necessary to determine whether the four radiographers fell within the exemption provision in cl 37(i) of the Award as "casual employees". 56 The question whether the four radiographers were to be regarded as casual employees, for the purposes of the Award, is to be determined by reference to the terms of the Award itself. There is no universally accepted concept of what is a casual employee. Certainly, there is no such concept that can be used to override the terms of the Award. See Community & Public Sector Union v State of Victoria [2000] FCA 14 (2000) 95 IR 54 at [10]. Nonetheless, there are some indicia at which the Court can look in a given case. One is, as Marshall J recognised in Community & Public Sector Union at [10] the employer's categorisation of the position, although his Honour recognised that such categorisation could not be the sole determinant. At [12], his Honour expressed the view that: "First, it is not inconsistent with a casual employment relationship for employees to be engaged on a regular basis pursuant to a roster: see Ryde-Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385. Secondly, the evidence is that employees at the Barwon gatehouse can make themselves unavailable for duty and in fact do so without employer disapproval so long as reasonable notice of a roster change is given. In addition, two employees work only two shifts per fortnight. Thirdly, it is not necessarily the case, as Ryde-Eastwood shows, that casual employment will always be informal, uncertain or irregular." 57 Both counsel referred to other authorities, in an endeavour to emphasise factors that were considered to bear upon the characterisation of the employment of the four radiographers. I do not find those authorities of great assistance. 58 It must be recognised that, in its letters to each of the four radiographers, MDIG expressly characterised their employment status as "casual". None of the four radiographers protested about this, but I accept the evidence of each of Ms Padey, Ms Williams and Ms Fowler as to their understanding of this characterisation. In brief, they did not regard it as negating the fact that they had permanent employment with defined shifts and they regarded it as relevant only to their rate of pay. 59 Although regular rosters and long-term employment may not be necessarily inconsistent with casual employment, they are, in my view, powerful indicators that such employment is not properly to be regarded as "casual" in ordinary parlance. 60 The four radiographers worked in what was essentially a fixed roster system. Each understood that her obligation was to work during her rostered times. Each accepted an obligation to ensure that a shift was filled if she were unable to work that shift herself. This was the extent of the flexibility involved. Each of the four was cross-examined closely about the extent of the flexibility, with a view to establishing that the four radiographers worked only when they wished to work. Reference was made to records of income tax and superannuation deductions from their pay, with a view to suggesting that variations in those figures were indicative of great flexibility. Substantially, these attempts failed. Variations in the figures were due to flexibility within the strictness of the rostered system. An employee is not to be labelled as a "casual" simply because there is not absolute rigidity in his or her working conditions. 61 The concentration in the evidence was on the obligations of the four radiographers. It is also proper to look at the position of the respondent, and at MDIG and Southern Radiology before it. Once a contract was made between one of the four radiographers and one of the employers, it was not open to that employer to discard the services of the particular radiographer in respect of a particular shift, and thereby to avoid the obligation to pay remuneration to that radiographer. One of the main indicators of the casual nature of employment must be that it is open to the employer simply to notify the employee that his or her services are not required at a particular time. No obligation to pay in respect of the period of service foregone arises when employment is truly casual. That was not the position with regard to the shifts undertaken by the four radiographers in the present case. 62 The evidence therefore points to the position of the four radiographers as being something other than casual employees. This was recognised in the letters of offer sent to them by the respondent, in which each was designated as "Permanent Part Time Radiographer". 63 It is most important, however, to return to the terms of the Award, which must be determinative of the issue. It will be recalled that the definition of "casual employee" in cl 38(b) of the Award contain an express exclusion of "an employee who could properly be classified as a full-time or part-time employee." The same exclusion appears in par (a) of Part Two of cl 12, dealing with casual employment. In this case, the exclusion directs attention specifically to cl 11, which deals with part-time employment. That clause provides for the payment of an hourly rate for those employed on a part-time basis. There are two alternatives. Either the rate is equal to 1/38 of the weekly wage, with paid leave entitlements on a pro rata basis, or it is equal to 1/38 of the weekly rate plus 25 per cent for work performed during weekdays and 75 per cent for work performed on weekends and public holidays, with no leave entitlements. It happens that the latter rate is the same as the rate prescribed by cl 12 for casual employees. The phrase "part-time" is defined in cl 38(k). This definition is crucial to the present case. It refers to availability to work "on a regular basis any number of hours less than thirty-eight". 64 The words "regular basis" indicate that this definition applies to the four radiographers in the present case. Their rosters were such that they were engaged to work a number of hours less than thirty-eight on a regular basis. The application of this definition to cl 11 means that the four radiographers were employed on a part-time basis under cl 11. They were therefore excluded from being regarded as casual employees for the purposes of cl 12. It was not open to MDIG to convert them into casual employees by attaching that label to them. Not being casual employees, they were not excluded from the benefits of severance pay by cl 37(i). 65 In the course of the trial, I had some difficulty construing subcl (b) of Part Two of cl 11 of the Award. This subclause permits two modes of employment by agreement, namely fixed term employment and temporary employment for a period not exceeding three months. Its presence in Part Two of cl 11, which relates to part-time employment, is the cause of the confusion. I had thought that it might suggest that part-time employment was limited by the Award to fixed term or short-term employment. An examination of the terms of the Award makes it clear that this is not the case. To attempt to make subcl (b) govern subcl (a) would be to ignore the importance of the phrase "regular basis" in the definition of part-time in cl 38(k). I am satisfied that subcl (a) of Part Two of cl 11 of the Award makes provision for ongoing part-time employees. The four radiographers in the present case were ongoing part-time employees. 66 I am therefore of the view that the respondent, being bound by the Award, as the successor, assignee or transmittee of part of the business of MDIG, was obliged by cl 37(c) to pay each of the four radiographers severance pay when their employment by the respondent at the Clinic came to an end. As I have said, the amounts it was obliged to pay are not in dispute. There was therefore a breach of cl 37(c) of the Award on the part of the respondent in failing to make each of the necessary payments. The breaches are required by s 178(2) of the Act to be treated as a single breach of cl 37(c), because they "arose out of a course of conduct". 67 It is therefore necessary for me to consider the question of penalty. On this issue, I have considerable sympathy for the position of the respondent. Not having been bound by the Award as a named party, the respondent was entitled to contest its liability to pay severance pay for the redundancy of the four radiographers. Its liability depends to an extent on the resolution of technical issues, which I have resolved against it. To some extent, it was caught in a situation that was not of its own making, although commercial prudence might have dictated that it investigate its possible liability before making offers to employees already working at the Clinic. In the circumstances, a nominal penalty of $50 is appropriate. Pursuant to s 356(b) of the Act, it is appropriate to order that the penalty be paid to the applicant. The institution of the proceeding by the applicant has been vindicated. 68 It is also appropriate to exercise the power given to the Court by s 178(6) of the Act to order that the respondent pay each of the four radiographers the amount of the underpayment. Pursuant to s 179A, it is necessary to order that interest be paid on the amounts outstanding. Like s 51A of the Federal Court of Australia Act 1976 (Cth), s 179A(1)(a) gives the Court a discretion as to the rate of interest. The practice under s 51A is to choose the rate of interest applicable in the courts of the State in which the case has been tried. The relevant rate in Victoria is currently 12.25 per cent. Accordingly, there will be an order that the respondent pay to each of Ms Padey, Ms Fowler and Ms Pollard the sum of $1,255.64, being $1,008 underpayment, together with $247.64, being interest at the rate of 12.25 per cent from 3 July 2000, when the obligation to pay arose, to the date of judgment. In the case of Ms Williams, the amount will be $1,674.18, being $1,344 underpaid, together with $330.18, being for interest at the same rate for the same period. Section 347 of the Act has the effect of preventing there being any order for costs in the proceeding.

Health Services Union of Australia v Gribbles Radiology Pty Ltd

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (13)