30 It was further pointed out that there would be many instances where Cytech would have to actually bear the cost of people who were repatriated well within the period of the contract considering that it cost Cytech in the vicinity of $10,000 to bring each recruit into Australia.
31 The 18-month period of engagement of the Applicants was clearly not a fixed term period because termination provisions were provided for in the Supply Agreement. The Supply Agreement provided that it may be terminated by either party on the provision of one month's written notice. In relation to the termination of the engagement of any of the agency staff for one of the reasons stipulated in the Supply Agreement, notice was required to be served on Cytech, five business days prior to the notice of termination of engagement, specifying the nature of the breach. Thereafter 30 business days' notice was required in order to provide a substitute agency employee for the remainder of the contract period. Cytech was at liberty to terminate the Supply Agreement summarily in the event the Respondent became insolvent.
32 The Respondent, whilst under no contractual obligation to continue the arrangement beyond the 18-month period, could elect to extend it by providing Cytech with written notice of its intention to do so one month before the end of that period.
33 Cytech did not shy away from its OH&S responsibilities towards the Health Care Professionals. It held both itself and its clients responsible for providing them with a safe place of work.
34 Cytech placed its nursing staff with its clients at no charge for the first week of their employment, termed the "supernumerary week" and if further assimilation time was necessary, that period was extended for a further week. The supernumerary period was not taken into account in developing the service fee and charge. During cross-examination, Mr O'Bree stated that:
"The purpose of the supernumerary period is to offer that as a period for training, so whilst we don't undertake direct training, because as you stated earlier, we're not an aged care facility and we're not licensed to be, what we do is we actually offer the supernumerary period to enable the facility to use that period for the purposes of training. So in effect we do pay for the training, but we don't actually conduct it as such."
35 Attached to the Supply Agreement between Cytech and the Respondent were a series of schedules relating to each individual staff member. Those schedules outlined the period of employment (18 months), the start date, and the various rates applicable for different days of the week. Over the 18-month period of the contract for supply of an individual employee, there may be anything up to 15 variations to the Supply Agreement as the schedules reflected movement in grades or classifications of the employee concerned.
36 Cytech did not burden its clients with the up-front costs associated with the employment of nursing staff from overseas. It paid all such expenses directly.
37 Mr O'Bree went on to provide evidence in relation to the contractual relationship between Cytech and the Health Care Professionals it recruited from overseas.
38 Cytech advertised for nursing staff overseas. It provided a 5 or 6-page blank application form on its webpage. In requiring Applicants to "apply on line", it advised that:
"These forms are crucial in assisting us to present your details for a position with our clients. Please note you must obtain an email address to receive future correspondence. If you wish, you may use a friend or colleague's email address. Once all information is received, one of our recruitment consultants or recruitment manager will be in touch with you".
39 Both Applicants had been recruited from Fiji in that manner. Tendered in the proceedings were notes of the interviews conducted with each of the Applicants as part of the recruitment process.
40 For immigration purposes, both were designated as "Residential Care Workers" because neither of them had secured the requisite qualifications for registration in Fiji at the time of recruitment.
41 Australia does not grant nurses from Fiji automatic registration. Nurses from there are required to successfully undertake a 3-month transitional course prior to registration being granted. Once the nurse signs an authority, Cytech acts on behalf of that nurse by applying, paying, and setting up their registration prior to applying for their visas. Cytech had undertaken all of that on behalf of the Applicants.
42 As was its practice. Cytech negotiated a rate of pay and entered into employment contracts, for 18 months duration, with both applicants.
43 The contract locked the nursing staff in for 18 months to allow Cytech to achieve its margin and amortise the costs it had incurred in relation to that employee. The Employment Contract went on to provide the Applicants with three options upon conclusion of the period - to remain with Cytech or seek to transfer their employment to the client directly or to find another sponsor.
44 Prior to their arrival in Australia, Cytech provided the Applicants with a document explaining the relocation process. It advised that Cytech would pay for two weeks' accommodation (currently capped at $600), air fares, arrival fees, and so on. However, the Applicants were required to bring a certain amount of cash into Australia with them. Mr O'Bree gave evidence that Cytech has had nurses get off the plane in the past with literally $5 in their pocket.
45 Cytech paid for their relocation to Australia, including airfares for them and their dependants.
46 The Applicants were met upon their arrival at Sydney Airport by dedicated Cytech Relocation Managers. As an example, Ms Julie Irvine, Cytech's Relocation Consultant, organised accommodation for Ms Kava through Jamison's Real Estate prior to that Applicant's arrival in Australia. Cytech signed the lease on her behalf and arranged for the lease to be transferred to her when she arrived in Australia.
47 A loan agreement was entered into between Cytech and its employees repayable by the nursing staff over the 18 months of the contract. It related to funds expended by Cytech in leasing furniture and electrical equipment from Radio Rentals, and purchase of basic household items like crockery, cutlery, and so on to furnish their accommodation. Mr O'Bree would not agree with the proposition that, as far as possible, the company was cost neutral insisting that each nurse cost the company approximately $4500 which it passed on as part of the contract cost to the client otherwise it would not be in business.
48 The Applicants went through a 2/3 day relocation process with Ms Irvine, during which assistance was rendered in setting up bank accounts, setting up tax file details and other ancillary matters.
49 Mr O'Bree gave evidence that Cytech assisted its staff with "absolutely everything" including referrals to immigration consultants if they wished to apply for permanent residence in Australia. The only guarantees Cytech gave its employees were in relation to the 18 month tenure and their safety in Australia.
50 It was stated that there was incontrovertible evidence in all the material put before the Commission that Cytech was the employer of both Applicants:
· The Applicants confirmed that all of the documents relating to their recruitment and employment were, without exception, Cytech documents;
· The employment contracts clearly evinced such an intention, having been executed by the Applicants and faxed back to Cytech before departure from Fiji;
· Cytech undertook the responsibility and costs associated with travel arrangements, accommodation and visa applications;
· A fresh copy of the contract was executed upon their arrival in Australia. Attached to each contract was a schedule containing individualised terms of engagement with reference back to appropriate clauses within the contract; and
· Cytech maintained time sheets, paid their wages directly to them, issued them with pay slips and remitted group taxation to the Australian Tax Office.
51 Cytech was neither licensed nor registered to run nursing homes nor did it run an aged care or health service facility. The relevant award for agency staff, that is, persons not directly employed by aged care facilities, is the Nursing Homes, Nurses &c. (State) Award. It was submitted that it was the appropriate award to apply to both applicants because they were employed by Cytech. Direct employees of Wesley Gardens Aged Care were engaged pursuant to the Charitable Aged and Disability Care Service (State) Award.
52 DIAC required Cytech to pay a certain annual salary to its nursing staff which was greater than that stipulated in the Nursing Homes &c. Nurses (State) Award. It used to be $38,000 and had increased to just under $42,000 compared to the minimum award rate of about $36,000/$37,000. DIAC required Cytech to comply with all other conditions of the award.
53 Cytech charged its clients $35.25 per hour which equated to $69,829 per annum.
54 The 457 visas required the sponsor to be the direct employer and therefore totally obligated to ensure the medical and financial wellbeing of the employees. As the 457 visas for the nursing staff were applied for by Cytech, the nursing staff would be in breach of that visa if they "moonlighted" by working for another employer who did not carry the legal obligations attached to that visa. DIAC had to be notified if the contract with the client was terminated, or if the employee's grade altered. Cytech was audited on a regular basis, at least every six months, and was also subjected to snap audits to ensure that the employees were being paid correctly and that all legal requirements were being met. Cytech risked losing its licence if it breached departmental requirements.
55 Mr O'Bree pointed out that Cytech would only ever allow a client to take over the employment of a nurse within the 18-month period if that nurse had obtained permanent residency and the client agreed to pay a monthly service fee, billed weekly, until the conclusion of the 18 months. That was because its margin and costs were built into that 18-month period. However, Cytech would not actively recruit any employees from overseas for direct employment by a client.
56 It was emphasised that the contractual relationship between the Respondent and Cytech was not a sham arrangement that was designed to offend public policy by subverting the award structures. It was pointed out that the applicants received benefits well in excess of award provisions to the point that the sum total of their wages and overheads equated to rates received by registered nurses. That was despite the fact that they were unable to secure registration which would qualify them for receipt of such higher award rates. It was pointed out that the wage rates payable to them was the primary reason why the Respondent ultimately could not maintain the engagement of the Applicants.
57 The employment contract between Cytech and the Applicants spelt out the terms of the engagement, viz. Cytech agreed to employ the employee and the employee agreed to be so employed to provide health services for the team exclusively for Cytech. It was intended to ensure that the Applicants understood the relationship between Cytech, the client, and the employee. It was a requirement of DIAC that Cytech be the actual employer and it was illegal for any of the nurses brought into Australia on the 457 visa to be employed, or paid, by a third party. Breach of that term would result in cancellation of the visa and subsequent deportation.
58 The employment contract ensured that the nursing staff were aware that they could be redeployed, for instance, where the contract between Cytech and a client for provision of labour was terminated.
59 It also emphasised that the nursing staff were subject to control, direction and supervision of Cytech however, they were also to work for, and comply with, instructions issued by its clients.
60 Cytech, in its capacity as employer, was contractually obligated to pay the employee's salary. The Applicants were required, and did, complete a standard Cytech weekly time sheet, had it authorised by the client as to its accuracy, and submitted it to Cytech by the Monday following each week worked. The information submitted served a dual purpose - it enabled Cytech to calculate the wages payable to its employees and to invoice the client for their services. All relevant time sheets were attached to the invoices forwarded to the client. The time sheets varied from facility to facility depending on the individual requirements of each facility. The Applicants' banking details were held by Cytech. The employment contract further stipulated that payment for additional hours would not be made without prior approval of Cytech or the Respondent.
61 The Employment Contract further stipulated that Cytech was obliged to make superannuation contributions on behalf of its employees, administer and provide payment for annual leave, sick leave, all allowances, loadings and overtime.
62 Termination of employment could be effected by Cytech or the Applicant by the provision of one month's notice albeit the Employment Contract placed serious brakes and checks on the ability of the Applicants to do so.