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[2024] QCA 30
General information, not legal advice.
Court of Appeal (Qld)
2024-03-08
Bond and Flanagan JJA and Cooper J
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Programmed Integrated Workforce Ltd v Fox [2024] QCA 30
PARTIES: PROGRAMMED INTEGRATED WORKFORCE LTD / ABN 29 085 701 962 / (appellant) / v / CRAIG GEOFFREY FOX / (respondent)
FILE NO/S: Appeal No 15927 of 2022 / ICQ No 15 of 2022
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Industrial Court of Queensland at Brisbane – [2022] ICQ 32 (Davis J, President)
DELIVERED ON: 8 March 2024
DELIVERED AT: Brisbane
HEARING DATE: 30 August 2023
JUDGES: Bond and Flanagan JJA and Cooper J
ORDERS: The appeal is allowed.The decision of the Industrial Court of Queensland is set aside and a new decision is substituted, namely – The appeal to that court is allowed; andThe decision of the Queensland Industrial Relations Commission is set aside, and a new decision is substituted, namely, a decision that the application for a proportionate payment for long service leave is dismissed. The respondent must pay the appellant’s costs of the appeal.
CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND – CONTINUITY OF EMPLOYMENT – GENERAL EMPLOYMENT CONDITIONS – LONG SERVICE LEAVE – CONTINUITY OF SERVICE AND EMPLOYMENT – where the appellant entered into a labour hire contract to provide temporary administration and trades labour hire services to Brisbane City Council – where the appellant had been engaged in the calling of providing temporary administration and trades labour hire services to the Council – where the Council engaged a new company to provide the same services to it with the result that the appellant ceased providing those services and the new company started providing those services – where the new company became engaged in the calling of providing temporary administration and trades labour hire services to the Council – where the appellant’s casual employee had completed at least 7 years continuous service with the appellant being on-hired to and assigned to perform work for the purposes of the appellant’s labour hire contract with Council – where the appellant terminated the casual employee’s contract of employment – where the casual employee was employed by the new company to do the same work and started doing so immediately after ceasing work with the appellant – whether the casual employee was entitled as against the appellant to proportionate payment for long service leave pursuant to s 95 of the Industrial Relations Act 2016 – whether there had been a “transfer of calling” from the appellant to the new company within the meaning of s 132 of the Industrial Relations Act 2016 – whether the appellant had dismissed the casual employee for a reason other than the employee’s conduct / Industrial Relations Act 2016 (Qld), s 93, s 95, s 102, s 103, s 132, Sch 5 / Australian Liquor, Hospitality and Miscellaneous Workers Union, Qld, Union of Employees v Wilsons Parking Australia 1992 Pty Ltd (2002) 171 QGIG 323; [2002] ICQ 49, cited / Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194; [2005] HCA 9, cited / R v A2 (2019) 269 CLR 507; [2019] HCA 35, applied
COUNSEL: C J Murdoch KC, with C D Martin, for the appellant
SOLICITORS: Herbert Smith Freehills for the appellant / Crown Law for the respondent
BOND JA: The respondent, an Industrial Inspector with the Office of Industrial Relations1, made an application to the Queensland Industrial Relations Commission (the QIRC) on behalf of Mr Haining, a former employee of the appellant (PIW), for proportionate payment of long service leave said to be owing by PIW under the Industrial Relations Act 2016 (Qld) (the Act).
The respondent’s application to the QIRC proceeded by reference to an agreed statement of facts. The QIRC ordered PIW to make a proportionate payment of long service leave to Mr Haining. PIW appealed to the Industrial Court of Queensland, where the hearing was heard by the president of that Court, sitting alone. His Honour dismissed the appeal.
On appeal to this Court, PIW seeks to have the decision below set aside, contending that two errors of law were made.
For reasons which follow, I would order:The appeal is allowed.The decision of the Industrial Court of Queensland is set aside and a new decision is substituted, namely —(i)The appeal to that court is allowed; and(ii)The decision of the Queensland Industrial Relations Commission is set aside, and a new decision is substituted, namely a decision that the application for a proportionate payment for long service leave is dismissed.The respondent must pay the appellant's costs of the appeal.
The relevant facts
On 20 June 2011, PIW, a labour hire company, entered into a labour hire contract with the Brisbane City Council (BCC) pursuant to which it agreed to provide temporary administration and trades labour hire services to BCC. The labour hire contract and a 4 July 2017 variation to it were attachments to the agreed statement of facts.
Under the labour hire contract PIW provided those services to BCC through a panel arrangement. The contract set out a regime whereby during its term BCC could place an order for services which PIW would then provide. But the contract was explicit that BCC gave no guarantee that it would acquire any services from PIW during the term of the contract and that BCC reserved the right to place an order elsewhere in certain circumstances.
PIW provided temporary administration and trades labour hire services to BCC pursuant to the labour hire contract from 20 June 2011 to 2 August 2019. The services so provided included the provision of individuals employed by PIW and on-hired to BCC under the occupation description “gardener/general hand”. It was an agreed fact that during that period PIW “was engaged in the calling of providing temporary administration and trades labour hire services to BCC.”
On 3 October 2011, PIW entered into a written casual employment agreement with Mr Haining. The terms of the casual employment agreement were summarised in the agreed statement of facts in this way:Mr Haining was recorded as available to accept offers of casual employment from PIW; andMr Haining agreed that:(i)by being recorded as available to accept offers of casual employment, he was not guaranteed work; (ii)any work offered would be in accordance with PIW’s needs; (iii)PIW could offer him an assignment; (iv) he could accept or reject any offer of an assignment;(v)there was no obligation on PIW to offer, or on Mr Haining to accept, any assignment; (vi) each offer and acceptance would constitute a distinct contract of employment, on the terms set out in the casual employment agreement, which would be separate from any subsequent or prior contract of employment;(vii)he did not have any entitlement to ongoing employment given the casual nature of his engagement; (viii)consistently with the casual nature of his employment, each assignment would represent a discrete period of employment on a casual basis; (ix)an assignment was subject to, and the length of the assignment determined by, PIW’s clients; (x)on completion of an assignment, PIW was under no obligation to offer him any further assignments.
The form of the casual employment agreement was an attachment to the agreed statement of facts, with the result that some of the more important terms may be recorded in full.
By a recital, that Mr Haining declared “I understand that any offer of employment made by [PIW] will be subject to the Terms and Conditions of employment as detailed below.”
“1. Casual employment
You will be recorded as being available to accept offers of casual employment with [PIW]. Being recorded as an available casual employee does not guarantee work, and you acknowledge that:
Any work offered will be in accordance with [PIW’s] needs. [PIW] may change the quantity and arrangement of any work offered to you as necessary;
There is no obligation on [PIW] to offer or on you to accept, any assignment. Each offer and acceptance will constitute a distinct contract of employment, on the terms set out in this agreement, which is separate from any subsequent or prior contract of employment; and
You do not have any entitlement to ongoing employment given the casual nature of your engagement.
2. Commencement date
Consistent with the nature of your employment, each assignment represents a discrete period of employment on a casual basis. [PIW] does not employ you on a permanent basis.
3. Assignments
[PIW] will use reasonable endeavours to offer you assignments with a client of [PIW]. [PIW] may offer you an assignment, from time to time, by advising you of the expected assignment details, namely:
The type of work to be performed;
When the work is to be performed;
The work roster; and
Any other requirements applicable to the particular assignment.
[PIW] may contact you regarding any current or potential work assignments via telephone, SMS, email or postal mail.
You may accept or reject any offer of an assignment. On completion of an assignment, whether satisfactory or otherwise, [PIW] is under no obligation to offer you any further assignments.
You acknowledge that an assignment is subject to, and the days of work, hours and length of the assignment are determined by, [PIW’s] client requirements from time to time. Therefore, although you may accept an assignment from, and be informed of the expected days of work, hours and length of the assignment by, [PIW], these are not guaranteed.
If you accept an assignment for a specific or minimum period of time, you must complete the specified or minimum period of time. Should you elect not to complete the assignment for whatever reason, you must inform [PIW] immediately.
…
10. Termination
In accepting this offer of employment, you acknowledge that your employment is casual and therefore offered with no expectation of continuity. [PIW] will provide you with a minimum of one hour’s notice of any change in your work requirements, suspension of work or the termination of your employment.
[PIW] will be entitled to terminate your employment immediately if any of the following occurs:
serious misconduct, including but not limited to:
i. Wilful or deliberate behaviour by you that is inconsistent with the continuation of the contract of employment;
ii. Conduct by you that causes imminent and serious risk to the health or safety of a person or the reputation, viability or profitability of [PIW’s] business;
theft;
fraud;
assault;
being under the influence of drugs or alcohol at work;
refusing to carry out a lawful and reasonable instruction that is consistent with your employment;
failure to observe any safety and specified work practices mandated by [PIW] or its client; or
Unlicensed driving (if driving a vehicle forms part of your duties).”
From Monday 3 October 2011, PIW employed Mr Haining as a casual employee on-hired to, and assigned to perform work for, BCC in the occupation of “gardener/general hand”, for the purposes of fulfilling PIW’s obligations under its labour hire contract with BCC. The agreed statement of facts did not record how many separate assignments were made the subject of an offer and acceptance over the period during which Mr Haining was employed.
In late 2018, BCC invited tenders for a new contract for the provision of labour hire services to it. PIW tendered for the new contract but was unsuccessful and on Monday 1 July 2019 the tender was awarded to Randstad Pty Ltd (Randstad). By letter on that date BCC advised PIW that Randstad had been the successful tenderer; thanked PIW for its service throughout the term of the contract and stated that it looked forward to PIW’s continued support during the transition period.
From Monday 1 July 2019 to Friday 2 August 2019, there was a transition period during which PIW continued to provide to perform its obligations under the labour hire contract. During that period PIW and Randstad attended at a handover meeting with BCC and made arrangements for the orderly continuation of business and the orderly transitioning of employees from PIW to Randstad. By Thursday 4 July 2019, PIW and Randstad had agreed that Randstad would transition PIW’s employees, so that the first day that they would commence as employees of Randstad would be 5 August 2019.
On 4 July 2019, Randstad wrote to PIW, confirming it would be transitioning PIW’s employees who were currently working under PIW’s contract with BCC. It advised that in the week commencing Monday 8 July 2019, Randstad would directly approach such employees about their future employment with BCC. It advised PIW that Randstad’s engagement of existing employees would be dependent upon the employees’ choice to transition to Randstad and their acceptance of Randstad’s terms and conditions of employment. It confirmed that Monday 5 August 2019 would be the first day that transitioned employees would commence on Randstad’s books. (PIW and Randstad later agreed to bring that date forward to Saturday 3 August 2019.)
On Friday 5 July 2019, PIW emailed the employees who had been engaged by it for the purpose being on-hired to, and assigned to perform work for, BCC under the contract. The email relevantly advised the employees:
“It is with regret we write to inform you that [PIW] has not been selected as Preferred Supplier to [BCC].
[BCC] opened up the supply of staffing solutions to their depots and sites in December 2018 through a tender process of which [PIW] submitted in the hope to continue our long-standing working relationship with [BCC].
[PIW] do not feel as though [BCC] have made the right decision, however, the tender process has been finalised and Randstad have been awarded the tender.
Your health and wellbeing is our priority. Some of you have worked with the [employer’s] team for many years. We attach our Employee Assistance Program information should you wish to speak with someone about this change. Should you wish to remain in your current role at [BCC], you will be asked to transition to Randstad. Randstad will be Preferred Supplier from 5th August 2019 which means your last day working with [PIW] will be Sunday 4th August or before this date should your last shift be prior to this date. A representative from Randstad will be attending all [BCC’s] depots and sites to hand out their paperwork for employees to complete.
Our Account Management team … will be attending [BCC’s] depots and sites as soon as possible to see you all. Should you have any queries or concerns, please do not hesitate to reach out to one of us.
We would like to take this opportunity to thank you for your hard work, loyalty and your professional representation of [PIW]. Please reach out to us should you require any assistance in the future.
Wishing you all the very best.”
From Monday 8 July 2019, Randstad attended various BCC sites and spoke to employees as foreshadowed. It arranged for all of the relevant employees who asked to transition to complete induction assessments and to enter into contracts of employment so that they could commence as employees of Randstad from Saturday 3 August 2019.
On about 3 August 2019, Randstad commenced providing temporary administration and labour hire services to BCC, including by the provision of individuals which Randstad employed and on-hired to BCC under the occupation description “gardener/general hand”. It was an agreed fact that since 3 August 2019, Randstad has been “engaged in the calling of providing temporary administration and trades labour hire services to BCC”. There was no agreed fact concerning the nature of the contractual arrangement between BCC and Randstad. However, it was agreed that –Randstad had gained access to, and gradually acquired beneficial use of, the following assets which were the property of BCC and which PIW had previously had beneficial use of, and which related to, or were used in connection with, the work which the relevant employees performed for PIW and came to perform for Randstad:(i)job-specific personal protective equipment; (ii)tools used by workers on-hired to BCC in roles requiring the use of tools, such as gardening tools used by workers on-hired to BCC in the occupation of “gardener/general hand”; (iii)site access cards; and since 3 August 2019, Randstad had beneficial use of BCC assets which PIW previously had beneficial use of, and which related to, or were used in connection with, the work which the relevant employees performed for PIW and came to perform for Randstad.
In the week ending Friday 2 August 2019, Mr Haining entered into a casual employment contract with Randstad under which he agreed to perform, from Monday 5 August 2019, the same work he had performed as an employee of PIW, namely he was a casual employee on-hired to, and assigned to perform work for, BCC in the occupation of “gardener/general hand”, for the purposes of fulfilling Randstad’s obligations under its labour hire contract with BCC.
From Monday 5 August 2019 to Sunday 27 October 2019, Randstad employed Mr Haining as a casual employee to perform work which was materially the same as the work he had previously performed as an employee of PIW. Mr Haining terminated his employment with Randstad on 27 October 2019 because of illness.
As to the relationship between PIW and Mr Haining, it was agreed that:From Monday 3 October 2011 to Friday 2 August 2019, PIW employed Mr Haining as a casual employee on-hired to, and assigned to perform work for, BCC in the occupation of “gardener/general hand”, for the purposes of fulfilling PIW’s obligations under its labour hire contract with BCC.Mr Haining had a period of continuous service with PIW of 7 years and 10 months (or 2,861 days).Mr Haining did not enter into another casual employment contract with PIW within 3 months after 2 August 2019.Mr Haining did not –(i)advise PIW that he wanted to keep working for PIW after 2 August 2019; (ii)give PIW any notice of termination of the termination which took effect on 2 August 2019. At the time of the termination on 2 August 2019, Mr Haining was paid $34.55 per hour.On 20 November 2019, Mr Haining asked PIW for an end-of-employment statement under s 199 of the (Cth) and PIW gave him an end-of-employment statement which recorded –(i) the date when his employment ceased as 2 August 2019;(ii)the reason for separation as “Labour hire employee assignment complete not presently engaged”.
The statutory long service leave regime
Chapter 2 of the Act is entitled “Modern employment conditions”. Part 3 of chapter 2 is entitled “Queensland Employment Standards” and it provides for minimum standards of employment that apply to employees and which cannot be displaced except under chapter 2. The various divisions of Part 3 encompass particular subject matters for regulation. The division presently of interest is division 9 which contains a scheme for working out the rights and entitlement of certain employees to long service leave under the Act.
The provision which specifies the entitlement of employees to long service leave is s 95. That section provided:
“95 Entitlement—employees other than seasonal employees
This section applies to an employee, …
The employee is entitled to long service leave, on full pay, of—
if the employee has completed 10 years continuous service—8.6667 weeks; and
after 10 years service, if the employee has completed at least a further 5 years continuous service—a period that bears to 8.6667 weeks the proportion that the employee’s further period of continuous service bears to 10 years.
An employee who has completed at least 7 years continuous service is entitled to a proportionate payment for long service leave on the termination of the employee’s service.
However, if the employee’s service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if—
the employee’s service is terminated because of the employee’s death; or
the employee terminates the service because of—
the employee’s illness or incapacity; or
a domestic or other pressing necessity; or
the termination is because the employer—
dismisses the employee for a reason other than the employee’s conduct, capacity or performance; or
unfairly dismisses the employee; or
the termination is because of the passing of time and—
the employee had a reasonable expectation that the employment with the employer would continue until the employee had completed at least 10 years continuous service; and
the employee was prepared to continue the employment with the employer.
…
…
In this section—
proportionate payment means a payment equal to the employee’s full pay for a period that represents the same proportion of 8.6667 weeks that the employee’s period of continuous service bears to 10 years.”
Important provisions concerning the assessment of that entitlement appear in some other sections.
Relevantly for casual employees like the employee in the present case:“Continuous service” is relevantly defined in s 93 as “the employee’s continuous service with the same employer, whether wholly in the State or partly in and partly outside the State”.“Casual employee” is defined by s 102 as “an employee who is employed more than once by the same employer over a period”.Pursuant to s 103(2), and amongst other things, a casual employee’s service is regarded as continuous service with the employer even though the employment is broken; any of the employment is not full-time employment; or the employee is employed by the employer under 2 or more employment contracts.Pursuant to s 103(3) and (4), in working out the length of the employee’s continuous employment, a period when the employee was not employed by the employer must be taken into account, but the continuous service ends if the employment is broken by more than 3 months between the end of 1 employment contract and the start of the next employment contract.
However, one cannot have regard only to s 95 of the Act because s 94 of the Act provides that part 4 of the Act applies “for working out an employee’s rights and entitlements to long service leave” under division 9. The provisions of part 4 are significant because they affect the calculation of the period of an employee’s continuous service with the same employer, which is the critical consideration for the calculation of an employee’s entitlement to long service leave pursuant to s 95.
The relevant provisions of part 4 of the Act are as follows:
“130 Definitions for part
In this part –
service includes employment.
transferred employee see section 132(1).
131 How part applies
This part applies for working out an employee’s rights and entitlements under this chapter, … by prescribing when the employee’s continuity of service is not broken.
An employee is not entitled to claim the benefit of a right or entitlement more than once for the same period of service.
...
132 Continuity of service—transfer of calling
This section applies to a person (a transferred employee) who—
becomes an employee of an employer (the new employer) because of the transfer of a calling to the new employer from another employer (the former employer); or
is dismissed by an employer (also the former employer) before the transfer of a calling if—
the person is employed by another employer (also the new employer) after the transfer of a calling; and
the employee—
(A)was dismissed by the former employer within 1 month immediately before the transfer; and
(B)is re-employed by the new employer within 3 months after the dismissal.
The transfer of the calling is taken not to break the transferred employee’s continuity of service.
A period of service with the former employer, including service before the commencement, is taken to be a period of service with the new employer.
....
In this section—
dismissed includes stood down.”
The questions on which PIW’s liability turned
The question of whether, and if so against whom, Mr Haining had an entitlement to be paid long service leave turned on whether the respondent could establish that Mr Haining had the requisite period of continuity of service against an employer.
The agreed fact that Mr Haining was employed by PIW from Monday 3 October 2011 to Friday 2 August 2019 and had a period of continuous service of 7 years and 10 months (or 2,861 days) meant that the rules for calculating continuity of services had been applied to the calculation of that continuity. In theory, the same result could have been obtained if Mr Haining had accepted one offer for a very long assignment; or he had sequentially accepted a series of assignments where there was no gap between assignments; or he had sequentially accepted a series of assignments with various breaks or gaps between assignments, so long as each break or gap was for less than 3 months.
Putting to one side for the moment the possible operation of s 132 of the Act, because Mr Haining had completed more than 7 years and less than 10 years continuous service with PIW, he was, pursuant to s 95(3), entitled to a proportionate payment for long service leave on the termination of Mr Haining’s service. However, pursuant to s 95(4), Mr Haining would be entitled to a proportionate payment only if his circumstances fell within one or other of the subparagraphs of s 95(4). In this case it was suggested that he fell within s 95(4)(c)(i), namely “the termination [was] because the employer … dismisse[d] the employee for a reason other than the employee’s conduct, capacity or performance”.
On this analysis the first question would be whether the termination of Mr Haining’s employment with PIW could be so regarded. If so then, subject to the possible operation of s 132, Mr Haining had the entitlement as against PIW which the respondent had asserted on his behalf.
If s 132 applied, PIW would be the “former employer” and Randstad the “new employer” for the purpose of the operation of the section and the period of service with PIW would be taken to be a period of service with Randstad. That would change the outcome which had apparently flowed from the answer to the first question. There would be no entitlement against PIW and the liability for a proportionate payment of long service leave would fall on Randstad and not PIW.
On this analysis, the second question would be whether s 132 applied.
The primary judge answered the first question in the affirmative. He characterised the question as “Did PIW dismiss Mr Haining by the 5 July email?”. The essential elements of his reasoning were as follows:The issue under s 95(4) is the termination of “service”, not termination of a contract of employment. For a casual employee, “service”, at least as far as the Act is concerned, is a different concept to a contract of employment.The casual employment agreement between PIW and Mr Haining was not itself a contract of employment. Rather, it was a contract which provided the mechanism by which contracts of employment would come into existence between PIW and Mr Haining, namely by PIW making an offer and by Mr Haining of an assignment with a client and Mr Haining accepting that offer.Clause 3(a) of the casual employment agreement placed an obligation upon PIW to “use reasonable endeavours” to offer Mr Haining assignments, even though, by clause 3(c), it was under no obligation to make offers of assignments. Further, clause 1 provided that Mr Haining would be “recorded as being available to accept offers of casual employment …”. Therefore, the casual employment agreement effected a contractual arrangement beyond the “contract(s) of employment” which were effected upon acceptance of an assignment.Accordingly, it was the casual employment agreement by PIW and Mr Haining, to the broader contractual arrangements of the casual employment agreement, which defined Mr Haining’s “service”.Clauses 10(a) and 10(b) in the casual employment agreement probably should be taken to refer to the termination of the contracts of employment brought about by the offer and acceptance of an assignment and not to the termination of the casual employment agreement itself.But that question was unnecessary to resolve because PIW’s email to Mr Haining of 5 July 2019 purported to bring the casual employment agreement to an end.
“Clause 132 provides arrangements with respect to continuity of service for a transferred employee. A transferred employee is an employee who becomes an employee of a new employer because of the transfer of a calling to that employer from a former employer.
This clause provides the transfer of a business does not break continuity of service for a transferred employee’s and that the service of an employee with the former employer is taken to be service with the new employer.”
The plain words of s 132 reflected that policy.
Having regard to the definition of “calling” the relevant focus was then whether there had been a “transfer” in the sense defined of PIW’s “undertaking” to Randstad.
His Honour considered the 2002 decision of President Hall in Australian Liquor, Hospitality and Miscellaneous Workers Union, Qld, Union of Employees v Wilsons Parking Australia 1992 Pty Ltd3. That decision had concluded that a car parking attendant was a “transferred employee” for the purpose of a provision of the Industrial Relations Act 1999 (Qld) which was a close equivalent of s 132. His Honour noted:(i)The first employer had leased car parking areas in a city building and was operating a car parking business. The owner of the building did not renew the lease but instead leased the area to the second employer. (ii)An employee, who had worked for the first employer and was then employed by the second employer, claimed that he was a transferred employee. (iii)President Hall found that the business conducted by the second employer was identical to that conducted by the first employer; there was continuity in that the second employer commenced business immediately upon cessation of business by the first employer; and the succession of the second employer to the business of the first employer was done through “an agreement effected by a third person”, namely the owner of the building who leased the area to the second employer. (iv)Accordingly, the car parking attended was to be regarded as a transferred employee.
His Honour then considered the 2005 High Court decision in Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd.4 His Honour noted:(i)Section 149(1)(d) of the Workplace Relations Act 1996 (Cth) which had provided that an award determining an industrial dispute was binding on any “successor, assignee or transmittee (whether immediate or not) to or of the business or part of the business of an employer who was a party to the industrial dispute.” (ii)The facts of the case required the High Court to consider whether a second employer could be regarded as having succeeded to the business or a part thereof of a first employer. The High Court found that it could not be so regarded. (iii)His Honour noted that the High Court held that the “business” of the former employer is the actual business which was conducted, not the type of business. To succeed to the business, the new employer must enjoy some part of the business of the first employer. That may be discerned by considering any transaction between the first employer and the second employer where any part of the business was acquired. Otherwise, it is necessary to consider the assets, “both tangible and intangible”, which constitute the business to identify any part of the business to which the second employer has succeeded. It is not sufficient that the second employee is conducting the same type of business. It must succeed to a part of the first employer’s business.
His Honour regarded the reference to “undertaking” in the definition of “calling” as conceptually the same as “business” considered by the High Court. He found that, having regard to the legislative purpose of s 132 and the legislative purpose behind s 149 of the Workplace Relations Act, the concept of “successor” in both sections is the same. The policy behind s 132 is to preserve an interest of an employee in long service leave where there has been a practical continuation of the business and the employee’s employment. The policy behind s 149 is to bind the second employer to an award where there has been a practical continuation of the business.
His Honour analysed the circumstances in which PIW’s relationship with BCC ceased and Randstad’s relationship with BCC commenced and noted:(i)PIW’s labour hire contract with BCC was not terminated; it just expired. (ii) PIW’s labour hire contract with BCC was not assigned by PIW to Randstad.(iii)Randstad entered into its own contractual arrangements with BCC. (iv)PIW was not a party to any contractual arrangements between BCC and Randstad. (v)No contractual arrangement existed between PIW and Randstad. At most, there was some cooperation between the two companies to ensure continuity of service to BCC. (vi)There has been no transfer of property from PIW to Randstad. (vii)PIW terminated the employment of its employees who were used to fill its obligations to BCC under the labour hire agreement before any of them were employed by Randstad. (viii)While BCC terminated its arrangements with PIW and made new arrangements with Randstad, none of its property was transferred and it did not cause a transfer of any property or rights from PIW to Randstad. It acquired services from Randstad and made its field equipment, which was previously made available to PIW, available to Randstad.
While the supply of labour hire services to BCC by PIW was a calling, that calling had not been transferred to Randstad. It followed that s 132 did not apply.
The grounds of appeal
Neither party to the appeal suggested that the primary judge had not correctly identified the two critical questions on which PIW’s liability turned. PIW advanced two grounds of appeal, essentially impugning the primary judge’s reasoning on the critical aspect of each question.
The first ground of appeal contended that the primary judge erred in law in determining that, on 2 August 2019, Mr Haining’s service with PIW terminated because PIW “dismisse[d]” Mr Haining within the meaning of s 95(4)(c) of the Act.
The second ground of appeal contended that the primary judge erred in law in determining that Mr Haining was not a “transferred employee” within the meaning of s 132 of the Act.
Consideration of each ground is an exercise of statutory construction, to which the general principles identified by the High Court in R v A2 apply.5
A preliminary observation
I should observe that, in my respectful view, the posited order of analysis is wrong. Section 95 of the Act cannot be applied in terms unless one can first calculate a period of continuous service with an employer. Section 132 sets out one of the rules applicable to the calculation of the period of service with the employer. If it applied, then it could not be posited that Mr Haining had any period of continuous service with PIW. Rather the period which might have been regarded as a period of continuous service with PIW would, by force of s 132(3) be taken to be a period of continuous service with Randstad. Logically the possible application of s 132 should be the first question. If it is answered in favour of PIW, then the other question does not arise.
Nevertheless, in light of the way the issues were dealt with below and argued on appeal, I will address the grounds of appeal in the order they appear.
Consideration of the first ground of appeal
In my respectful view the primary judge answered the first question correctly, essentially for the reasons which his Honour gave.
His Honour correctly characterised the distinction between the casual employment agreement and the separate and distinct contracts of employment that it contemplated would eventuate when offers of an assignment were made and accepted. The casual employment agreement essentially operated as an umbrella contract, providing a broad framework within which other and separate contracts of employment might be entered into. The provisions of cl 10 of the casual employment agreement were aimed at termination of the latter contracts, not the former contract.
For a casual employee like Mr Haining, continuous service was a broader concept than the period of employment created by a contract of employment. That much is obvious from the terms of s 103 of the Act. Continuity of service is not equated with the period of any particular contract of employment, rather it could be equated with the cumulation of the period of a series of such contracts of employment, including the gaps between them, so long as the gap did not exceed 3 months. The termination to which s 95(4)(c) refers is the termination of that continuous service, not the termination of any one of the particular contracts of employment which gave rise to the period of continuous service. The dismissal referred to in s 95(4)(c) must be a dismissal which brings about the cessation of the period of continuous service.
Evaluated against that understanding of the operation of the Act, it becomes clear that PIW’s email of 5 July 2019 must be taken to be such a dismissal. It was not expressed in terms limited to a particular assignment. To the contrary, its terms would have conveyed to Mr Haining that PIW was not contemplating the possibility that service might continue under the casual employment agreement by future offers of assignments with other clients of PIW. It conveyed without ambiguity that Mr Haining’s “last day working with [PIW]” would be the day of his last shift prior to 4 August 2019. The last two paragraphs quoted at [16] above were particularly indicative of that level of finality. And the dismissal was plainly for a reason other than Mr Haining’s conduct, capacity or performance.
Before this Court, PIW argued that the central flaw in the primary judge’s reasoning was that while a termination of Mr Haining’s service occurred on 2 August 2019 it was not because the appellant had dismissed him, it was because a contract of employment had come to an end. PIW contended that the cessation of the contract of employment was independent of the email of 5 July 2019, and would have occurred even if it had never been sent.
I reject that argument. As I have mentioned, the agreed statement of facts does not record how many separate assignments were made the subject of offer and acceptance over the period of Mr Haining’s continuous service. Nor does it record anything about what must have been the last offer and acceptance or whether he had been told anything about its proposed length. There is no evidence supporting the notion that the contract of employment expired due to effluxion of time. Of course, under cl 10(a) PIW only needed to give one hour’s notice of the termination of the contract of employment and PIW could have given a notice which did that and which might not have been regarded as a termination by dismissal of the broader arrangement between them. But, as the primary judge found, and I would also find, PIW did not take that course. The email of 5 July 2019 was not so formulated.
Consideration of the second ground of appeal
Having regard to the wording of s 132 of the Act, Mr Haining would be regarded as a “transferred employee” for the purpose of s 132 if either of two circumstances applied. First, if he became an employee of Randstad because of the transfer of a calling to Randstad from PIW. Second, if he had been dismissed by PIW within 1 month immediately before the transfer of a calling and reemployed by Randstad after the transfer and within 3 months after the dismissal.
The critical first step in determining whether either of those circumstances could be said to apply is to determine whether there had been a “transfer of a calling” within the meaning of s 132.
PIW challenged the primary judge’s conclusion that the calling contemplated by the section was the calling of the employer and not the calling of the employee. Let us put that part of the controversy aside for the moment and focus on what sort of calling existed in the present circumstances; what happened to it; and then approach the question of whether what happened to it can be regarded as a “transfer” within the meaning of that term as used in s 132.
In the QIRC proceedings and before a statement of agreed facts was produced, PIW’s pleaded response to the respondent’s application asserted that the relevant calling which was transferred was the “the calling of providing temporary administration and trades labour hire services to BCC, including the provision of individuals on-hired to BCC in the occupation of ‘gardener/general hand’”.7
Thereafter a statement of agreed facts was produced. It was signed on behalf of PIW on 16 August 2021 and by the respondent on 27 August 2021. Although there was no agreement that the calling described in the manner I have quoted should be regarded as having been transferred, there was an agreement that there was a calling as so described, and there were some facts agreed as to what happened to it:The statement of agreed facts recorded that from 20 June 2011 to 2 August 2019 pursuant to its undertakings under its labour hire contract with BCC —(i)PIW provided temporary administration and trades labour hire services to BCC, including the provision of individuals employed by PIW and on-hired to BCC in an occupation described as “gardener/general hand”; (ii)PIW was engaged in the calling of providing temporary administration and trades labour hire services to BCC. The statement of agreed facts also recorded that –(i)On about 3 August 2019, Randstad commenced providing temporary administration and trades labour hire services to BCC, including the provision of individuals employed by Randstad and on-hired to BCC in an occupation described as “gardener/general hand”. (ii)Since 3 August 2019, Randstad had been engaged in the calling of providing temporary administration and trades labour hire services to BCC, including the provision of individuals employed by Randstad and on-hired to BCC in an occupation described as “gardener/general hand”.
“In relation to an employee whose employment is terminated due to the transfer of the employee’s calling, see part 4.”
The statement of agreed facts proceeded on the basis that the connection which a putative transferor might have with the calling was that it was merely “engaged” in the calling. That use of language is completely consistent with the matters listed in the definition of “calling”.
The fact that person A is engaged in a calling in the sense discussed; stops being engaged in the calling; and person B starts being engaged in the calling might not be consistent with regarding person A having transferred the calling to person B in some senses of the verb “transfer”. But in this statute “transfer” is not limited to any particular sense and so long as there is a transfer from person A to person B, the person who effects the transfer does not need to be person A. Nor does the transfer need to be effected by an agreement between person A and person B. That which can be regarded as a transfer can be effected by an agreement effected by person C. Or it could simply happen because in light of other events, and by operation of law on those events, person B is the only person who can be engaged in carrying on the calling.
In my view the reasoning adopted by the High Court in Gribbles should not be applied to the present context or to the calling framed in the way on which the parties were agreed.
Conclusion
I would make the following orders:The appeal is allowed.The decision of the Industrial Court of Queensland is set aside and a new decision is substituted, namely —(i)The appeal to that court is allowed; and (ii) The decision of the Queensland Industrial Relations Commission is set aside, and a new decision is substituted, namely, a decision that the application for a proportionate payment for long service leave is dismissed.The respondent must pay the appellant's costs of the appeal.
FLANAGAN JA: I agree with Bond JA.
COOPER J: I agree with Bond JA.
The respondent had standing to make an application on behalf of the former employee pursuant to s 476(2)(e) of the Act. ↩
Industrial Relations Act 2016 (Qld), Schedule 5. ↩
(2002) 171 QGIG 323. ↩
(2005) 222 CLR 194. ↩
R v A2 (2019) 269 CLR 507 at 520–522 [32] to [37] per Kiefel CJ and Keane J with whom Nettle and Gordon JJ agreed (at 554 [148]). ↩
In this respect, I respectfully differ from the conclusion expressed by the primary judge that the last contract of employment, which was constituted by Mr Haining’s acceptance of his last assignment, expired and was not terminated. The email of 5 July 2019 terminated both the contract of employment and the casual employment agreement. ↩
PIW’s response to application dated 14 May 2021 at [3(8)(b)]. ↩
Programmed Integrated Workforce Ltd
Fox [2024] QCA 30
(2005) 222 CLR 194
(2019) 269 CLR 507
Clauses 1, 2, 3 and 10 of the terms and conditions provided (emphasis added):
The primary judge answered the second question in the negative. He characterised the question as “Was Mr Haining a transferred employee from 5 August 2019?”. The essential elements of his reasoning were as follows:The definition of “calling” in schedule 5 of the Act, could be a reference to either the employer’s calling or the employee’s calling. Whether it should be read either or both ways in a particular section is a question of construction of the section concerned.Some sections in the Act make the decision clear by referring specifically to “employer’s calling” or “employee’s calling”.Predecessors to s 132 of the Act expressly identified the calling referred to in the section as the employer’s calling and not that of the employee. Section 10B(13) of the Industrial Conciliation and Arbitration Acts *1932 to 1952 used the term “the calling carried on by a person who is an employer”. Section 241 of the Industrial Relations Act 1990 (Qld) referred to “transmission … of the calling in which the employer is engaged from the employer to another person”. Section 197(1) of the Workplace Relations Act 1997 (Qld) referred to “the employer’s calling”.*The purpose of long service leave is to reward continuous service by an employee to a particular employer. The legislative purpose of s 132 was to preserve the right where, for practical purposes, the service has continued even though the identity of the employer has changed because the enterprise in which the employee was been employed has changed hands.Support for the view just stated could be found in the extrinsic evidence set out in the Explanatory Notes to the Industrial Relations Bill 2016 (Qld) which relevantly provided:
Ignoring for the moment the circumstances which gave rise to the potential operation of s 132, a more difficult question would have arisen had the termination been narrowly formulated such that it terminated the particular contract of employment (because PIW no longer had the work justifying the particular assignment) but left open the possibility that service might continue under the casual employment agreement by future offers of assignments with other clients of PIW. If such an offer had been made and accepted within 3 months of the cessation of the previous contract of employment, then service with PIW would have been regarded as continuing. If 3 months passed without an offer being made, then the period of continuous service would have ended pursuant to s 103(3) of the Act. In the hypothesised circumstances, would Mr Haining have had any entitlement at all? The answer would probably require an examination of the reason why no further offer had been made to him and a consideration of whether the termination could be said to fit within ss 95(4)(c) or (d). In turn it might be necessary to consider how broad a meaning to be given to the concept of dismissal. It is unnecessary to address these issues in the present case.
The first ground of appeal fails.
Thus, it was common ground that there was at least one relevant “calling”, and it could be described as the calling of providing temporary administration and trades labour hire services to BCC. Further it was common ground that PIW was engaged in that calling until 2 August 2019 and on the following day Randstad commenced being engaged in the same calling. The reason that occurred was that BCC had sought tenders for the provision of the relevant services to BCC; both PIW and Randstad tendered for the work; Randstad won the tender; PIW ceased providing the services to BCC and Randstad commenced providing them to BCC. It may be inferred that Randstad did so pursuant to an agreement that it entered into with BCC consequent upon the fact, as was also an agreed fact, that BCC had awarded the tender to Randstad.
When one has regard to the fact that “transfer” was inclusively defined as “… succession of the calling either by operation of law or by agreement, including an agreement effected by a third person”, it becomes clear that on 3 August 2019 Randstad succeeded to the calling in which PIW had been engaged and that succession had occurred by operation of law (in that BCC was no longer contracted with PIW and, as a matter of law, PIW no longer had either the obligation or the right to continue to engage in the calling of providing the services to BCC) and an agreement effected by BCC (in that BCC had contracted with Randstad with the consequence that it was Randstad who had the obligation and the right to engage in the calling of providing the services to BCC). But, as the appellant also pointed out, the inclusive definition of “transfer” revealed an intention not to exclude the ordinary meaning of the verb, which is “to convey or remove from one place, person, etc. to another”. On the application of the ordinary meaning of the verb, on the agreed facts the calling of providing temporary administration and trades labour hire services to BCC was conveyed or removed from PIW to Randstad on 3 August 2019.
If, as I have concluded, there was a transfer of a calling in the sense I have explained, then it is relatively straightforward matter to conclude that either or both of the two circumstances to which I have referred at [51] above applied.
As to the first circumstance –PIW’s 4 July 2019 email told Mr Haining that Mr Haining’s “last day working with [PIW]” would be the day of his last shift prior to 4 August 2019”. Accordingly, that was the day PIW terminated both the then operative contract of employment and the broader casual employment agreement.The same email told Mr Haining that if he wanted to remain in his current role at BCC, he would be asked to transition to Randstad.That is what he did. In the week ending Friday 2 August 2019, he entered into a casual employment contract with Randstad under which he agreed to perform, from Monday 5 August 2019, the same work he had performed as an employee of PIW and his last work for PIW was Friday 2 August 2019.It may be inferred that he became an employee of Randstad because PIW’s “calling” (as described in the agreed facts) was transferred to Randstad.
As to the second circumstance:The transfer of the calling occurred on 3 August 2019 consequent upon a contract entered into earlier.Mr Haining agreed to start as Randstad’s employee commencing 5 August 2019, which was after the transfer.Mr Haining was dismissed by PIW on 2 August 2019, which was within 1 month before the transfer, and was re-employed by Randstad within 3 months after the dismissal.
It is unnecessary to examine PIW’s argument framed on the contention that there was a transfer of Mr Haining’s calling.
The result is that Mr Haining was to be regarded as a “transferred employee” for the purpose of s 132. The transfer of the calling did not break his continuity of service and the period of his service with PIW was taken to be a period of service with Randstad. PIW should not have been ordered to make a proportionate payment of long service leave to Mr Haining by the QIRC and the appeal to the Industrial Court should have been allowed.
In my respectful view, the arguments to the contrary which found favour both before the primary judge and the QIRC and which were advanced in this Court sought to recharacterize something on which the parties had already agreed (namely what could be regarded as a calling in this case) and sought to do so in order to advance the proposition that analysis in the present context should proceed in a way which was analogous to the way in which the High Court reasoned in Gribbles. Having reached the view that s 132 was aimed at the transfer of one employer’s business (or undertaking) to another employer, the examination then turned to the attributes of ownership of a business (or undertaking) and examining whether they could be said to have been transferred.
In my respectful view, such an analysis was not warranted in the present statutory context. One can well understand why the High Court pursued it. The statutory context in the High Court expressly required a focus on whether there had been a succession, assignment or transmission of the business or part of the business “of an employer”. But the present statutory context is different. I observe:The words used to define “calling” (namely craft, manufacture, occupation, trade, undertaking or vocation) were more abstract and contemplated matters not necessarily capable of being owned. They were capable of describing activities or occupations in which a person might be engaged, but not necessarily own. And although the primary judge was correct to conclude that “undertaking” is a word capable of being construed as a reference to a person’s commercial business, it is also a word capable of being construed as a reference to the actions, work or tasks which a person does or attempts. So, it might be observed, are at least some of the other words used in the definition of “calling”.Moreover, there was no need to regard the relevant calling as a calling “of the former employer”. PIW was surely right to suggest to this Court that the change in statutory wording from previous statutory analogues suggested an intention that the calling might be a calling of an employer, or it might be a calling of an employee. That must be true when one has regard to the note to s 125(3) of the Act which provided: