[1] Mr Michael Osmond (the Applicant) has lodged an application for unfair dismissal remedy concerning the termination of his employment by NBS Transport (SA) Pty Ltd T/A NBS Transport (the Respondent).

[2] The matter was previously the subject of unsuccessful conciliation and is listed for arbitration in August 2010.

[3] The matter was listed for the determination of jurisdictional issues. These are said to be related to the apparent allegation of the Respondent that the Applicant had not completed the necessary minimum period of employment and that the Applicant was a casual.

[4] The jurisdictional matter was listed for hearing on Friday, 9 July 2010 at 10 am. The notice of listing was forwarded on 10 June 2010 to several persons/bodies. One was to Mr David Walczak, a director of the Respondent, at his email address david@nbstransport.com. On 25 June 2010, Fair Work Australia (FWA) received email communication from Mr Walczak's email account at david@nbstransport.com. That email seems to be in response to the listing. It satisfied me that Mr Walczak's email is a working address and that he was informed of the proceedings on 9 July 2010.

[5] The Respondent failed to attend on 9 July 2010.

[6] I decided in the circumstances to proceed with the hearing.

[7] At the hearing, the Applicant was represented by Mr Stephen Bull of the Transport Workers Union of NSW (TWU).

[8] The Applicant gave evidence (Exhibits Osmond 1 and Osmond 2) and I have relied on it.

[9] Division 2 of Part 3-2 of the Act provides as follows:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

(a) if the employer is not a small business employer - 6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(b) if the employer is a small business employer - one year ending at that time.

(1) An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(a) a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee's period of employment with the new employer."

[10] It is not in dispute that a modern award covered the Applicant at the time of his termination (section 382(b)(i)).

[11] Although it is not completely clear, there is a suggestion from the Respondent that the Applicant had not completed a period of employment with the Respondent of at least the minimum period. Additionally, something is alleged as to his casual status. This may impact on the minimum period of employment.

[12] According to the evidence of the Applicant he was employed from October 2006 by Camgas Australia Pty Ltd as a driver. While with Camgas he drove trucks used by Camgas that delivered gas products to industrial and retail sites mainly in country New South Wales. He mainly attended the Origin Energy terminal at Botany to obtain gas products. Sometimes he obtained gas products from the Elgas depot at Port Botany.

[13] In early December 2009 the Applicant's employment was terminated with Camgas, and at or about the same time he commenced work with the Respondent.

[14] The Applicant says that his work did not change. He continued to drive the same truck and do his usual runs.

[15] Since his termination, he has seen the truck he used to drive still doing the same work.

[16] Mr Bull referred the Tribunal to section 311 of the Act which outlines when a transfer of business occurs and when an employee is a transferring employee.

[17] Section 311 provides as follows:

"311 When does a transfer of business occur

Meanings of transfer of business, old employer, new employer and transferring work

(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:

(a) the employment of an employee of the old employer has terminated;

(b) within 3 months after the termination, the employee becomes employed by the new employer;

(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;

(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).

(2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.

Transfer of assets from old employer to new employer

(3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:

(a) the old employer or an associated entity of the old employer; and

(b) the new employer or an associated entity of the new employer;

the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):

(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and

(d) that relate to, or are used in connection with, the transferring work.

(4) There is a connection between the old employer and the new employer if the transferring work is performed by one or more transferring employees, as employees of the new employer, because the old employer, or an associated entity of the old employer, has outsourced the transferring work to the new employer or an associated entity of the new employer.

New employer ceases to outsource work to old employer

(5) There is a connection between the old employer and the new employer if:

(a) the transferring work had been performed by one or more transferring employees, as employees of the old employer, because the new employer, or an associated entity of the new employer, had outsourced the transferring work to the old employer or an associated entity of the old employer; and

(b) the transferring work is performed by those transferring employees, as employees of the new employer, because the new employer, or the associated entity of the new employer, has ceased to outsource the work to the old employer or the associated entity of the old employer.

New employer is associated entity of old employer

(6) There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer."

[18] I find that on the evidence Camgas terminated the Applicant's employment in December 2009 (section 311(1)(a)).

[19] I find that on the evidence within three months of that termination, the Applicant was employed by the Respondent (section 311(1)(b)).

[20] I find that on the evidence, the work performed by the Applicant for the Respondent was the same or substantially the same as that performed for Camgas (section 311(1)(c)).

[21] As to whether there is a connection between Camgas and the Respondent (section 311(1)(d)) one needs to look at least to sub-section 311(3) to (6). In that regard, I am satisfied that on the evidence the Respondent took ownership of or received the beneficial use of some or all of the assets of Camgas. I am satisfied that the vehicle and contract runs of Camgas are now owned, and/or utilised by the Respondent (section 311(3)). Given that, I am satisfied that the requirement of section 311(1)(d) is satisfied.

[22] I also note that on 28 June 2010 an order (the Order) requiring production of documents was served on the Respondent. An affidavit from a process server (Mr Bruno Kranich) indicates that the Order was served on the Respondent. The Order sought:

"All correspondence, contracts, forms, applications, notes or other records relating to the lease, licence or transfer of trucks or any vehicle from Camgas Australian Pty ltd ACN 129 954 3299 or a related entity to NBS Transport (SA) Pty Ltd or a related entity between 1 June 2009 and 1 February 2010."

[23] The material was returnable on 9 July 2010. It was not complied with. I infer that such material would not have assisted the Respondent. This underscores my satisfaction as to the section 311(1)(d) requirement.

[24] I find that a transfer of business has occurred.

[25] Section 22 deals with the meanings of service and continuous service. Of particular relevance is section 22(7). It provides:

"(7) There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if:

(i) the employee becomes employed by the second employer not more than 3 months after the termination of the employee's employment with the first employer;

(ii) the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or

(i) the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;

(ii) the first employer and the second employer are not associated entities when the employee becomes employed by the second employer."

[26] It is clear from my earlier findings that section 22(7)(b) is satisfied. I find that transfer of employment occurred.

[27] As a consequence, of those findings, and notwithstanding that he was only employed by the Respondent from December 2009, the minimum employment period set out in section 383 is satisfied.

[28] As to a suggestion that the Application was a casual employee, the evidence from the Applicant is uncontested. He continued "to drive the same truck and do my usual runs" (exhibit Osmond 1/20)

[29] I find on the evidence that his employment was on a regular and systematic basis and that he had a reasonable expectation of continuing employment with the Respondent on a regular and systematic basis.

[30] I find that the requirements of Division 2 of Part 3-2 are satisfied and the applicant was at the relevant times protected from unfair dismissal.

[31] The jurisdictional objections are dismissed.

Stephen Bull for the Transport Workers Union of NSW

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