Consideration
40 I discuss below the first two questions on which Mr Urquhart's claim depended. These two questions are:
(1) Was meter reading a part of Powercor's business?
(2) If meter reading was a part of Powercor's business, was it transmitted to AMRS in 2002 (and/or 2004)?
If the first of these questions is answered in the negative, then Mr Urquhart's claim must fail. For the reasons stated below, this is the answer I would give. I would, as indicated below, also answer the second question against Mr Urquhart.
41 In these circumstances, there is no occasion to consider the question whether the industrial instruments on which Mr Urquhart relies (the 1998 Award, the 1999 Agreement and the 2002 Agreement) applied to him whilst in the employ of AMRS; and, if so, whether they gave rise to an obligation on AMRS's part in respect of Mr Urquhart's employment that has been breached. These questions lack any basis in fact to justify their further consideration.
Was meter reading a part of Powercor's business?
42 The first critical question is whether, for the purposes of ss 149(1)(d) and 170MB(2) of the Workplace Relations Act, AMRS is the transmittee of the business or part of the business of Powercor. Whether there has been transmission (or a succession or assignment), for these purposes, is a mixed question of fact and law. PP Consultants indicates how this question should be considered.
43 According to PP Consultants, as a general rule, in a case such as the present, it is necessary, first, to identify or characterise the business or the relevant part of the business of the first employer; secondly, to identify the character of the transferred business activities in the hands of the new employer; and, thirdly, to compare the two business: see PP Consultants at 655 per Gleeson CJ, Gaudron, McHugh and Gummow JJ. If, in substance, the business of the first employer has the same character as the transferred business activities in the hands of the new employer, then it may be possible to say the business, or a part of the business of the first employer had been transmitted to the new employer. If the business of the first employer does not have the same character as the transferred business activities of the new employer, then there can be no transmission (or succession or assignment).
44 The joint judgment in PP Consultants illustrates this approach. The analysis began with the proposition that St George Bank Ltd was in the business of banking and the activities in which it engaged at its branch at Byron Bay were part of its banking business (at 655). The pharmacist that the Bank appointed to carry on a branch agency after it closed this branch did not engage in the business of banking, although it engaged in banking activities (at 656). The pharmacist was, so their Honours held, carrying on the business of a banking agent. Their Honours said (at 656):
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 [pharmacist], whether as successor, assignee or transmittee.
On this approach, the fact that the activities carried on by the old and new employers were the same as far as the employees were concerned was immaterial.
45 Gribbles also concerned s 149(1)(d) of the Workplace Relations Act, although the focus in this case was on the meaning of the word "successor" in this provision. A company called Region Dell Pty Ltd conducted medical clinics, including one at Moorabbin. The company licensed the use of part of the Moorabbin clinic's premises for a radiology practice. The company also supplied the equipment. The radiology practice supplied the radiographers, consumables and the like. The company had granted three such licences - the first, to Southern Radiology; the second until 31 August 1999, to MDIG; and the third, from 1 September 1999, to Gribbles. In 2000, Gribbles terminated the employment of the radiographers at Moorabbin. If Gribbles were bound by the Award that had bound MDIG, then Gribbles was bound to pay severance pay to the radiographers. This turned on whether Gribbles was a successor, for the purposes of s 149(1)(d), to or to any part of the business of MDIG. In a joint judgment, Gleeson CJ, Hayne, Callinan and Heydon JJ held that it was not.
46 In the course of this judgment, their Honours touched on the meaning of the word "business" in this context. As their Honours said, to be a "successor" (or assignee or transmittee), it is not enough that the new employer pursues the same kind of business as the old: Gribbles at 211. What was meant by the word "business" in this context depends on s 149(1)(d), which "focuses upon succession, assignment and transmission to or of a business which is identified as the business of an employer", which "necessarily directs attention to what it is that the former employer had which is to be described as the 'business' of that employer": Gribbles at 211. Their Honours went on to say (at 212):
The 'business' of an employer may be constituted by a number of different assets, both tangible and intangible, that are used in the particular pursuit, whether of profit (if the 'business' is a commercial enterprise) or other ends … In the case of a commercial enterprise, identifying the employer's 'business' will usually require identification both of the particular activity that is pursued and of the tangible and intangible assets that are used in that pursuit. The 'business' of an employer will be identified as the assets that the employer uses in the pursuit of the particular activity. It is the assets used in that way that can be assigned or transmitted and it is to the assets used in that way that an employer can be a successor.
The new employer may be a successor, assignee or transmittee to or of the business, or part of the business, of an employer who was a party to the relevant industrial dispute if the new employer, having the beneficial use of assets which the former employer used in the relevant pursuit, uses those assets in the same or a similar pursuit. … Whether the new employer is a successor, assignee or transmittee, will require examination of whether what the new employer has can be described as a part of the former employer's business.
In s 149(1)(d) of the Workplace Relations Act, "the business or part of the business" of the former employer - which in the present case is Powercor - is thus to be characterised by reference to the particular activity that it pursued and the assets that it used in that pursuit. As Stellar Call Centres shows, whether a new employer "becomes the … transmittee … of the whole or a part of the business concerned", for the purposes of subs 170MB(2) depends on much the same inquiry.
47 Stellar Call Centres applied the reasoning in PP Consultants to an inquiry under ss 149(1)(d) and 170MB(1) (which, for present purposes, is in relevantly the same terms as s 170MB(2)). In the Full Court of this Court, Stellar Call Centres challenged the decision of the judge at first instance that, pursuant to ss 149(1)(d) and 170MB(1) of the Workplace Relations Act, it was bound by awards and certified agreements binding on Telstra Corporation Ltd ("Telstra"). The question was whether a part of Telstra's business that involved the taking and responding to telephone calls from Telstra's customers had been transmitted to Stellar Call Centres. The Full Court held that there was no such transmission, chiefly because the receiving of the calls from customers were "activities in support of Telstra's businesses in the telecommunication industry" but were "not themselves … the business or part of the business of Telstra": see Stellar Call Centres at 311. The Full Court said (at 311):
That business can appropriately be characterised as providing telecommunications services to its customers. In the course of conducting that business, Telstra is called upon to respond to enquiries, requests for services and complaints from its customers, including those made by telephone. However, the making of those responses is not a distinct 'part' of Telstra's business within the meaning of s 149(1), as explained by the High Court, any more than, for example, cleaning undertaken as a necessary aspect of the conduct of a restaurant is a 'part' of the business of the restauranteur.
The business of Stellar Call Centres was the provision of telephone answering services. The answering of calls was not, however, a part of Telstra's business; and, accordingly, there was no transmission of that part of Telstra's business.
48 Having regard to the considerations set out below, I find that, as at 2002 and 2004, Powercor was in the business of using significant assets to distribute electricity to western Victoria and western metropolitan Melbourne. This is what Powercor was licensed under the Electricity Industry Act to do. It had two lesser businesses that are not presently material. Meter-reading was not the business or part of the business of Powercor as at 2002 and 2004, or in the preceding years. AMRS was, however, engaged in meter reading activities. Its managing director, Mr Gallagher, said (and I accept) that the company had over 600 employees, reading 25 million meters a year and entering over 100,000 premises every day to do so. In these circumstances, there could be no transmission of the business or part of the business of Powercor for the purposes of ss 149(1)(d) and 170MB(2) of the Workplace Relations Act.
49 The character of AMRS's business metering activities was not in dispute. Indeed, they were evident from the activities it contracted with Powercor to perform. Under the 2002 contract, AMRS provided a standard meter reading service, which included meter readers, who reported the data retained in the meters. Under the 2004 contract, AMRS provided a standard and special meter reading service. In substance, a standard meter reading service was also what Marshmans and VMM had earlier provided to Powercor under their contracts. Under each of these arrangements, Powercor itself provided the PDE devices, the information system onto which the data was downloaded, the ancillary equipment to read the meters, the information about the meters that were to be read and the time frames in which this was to be done: see clause 6 of the VMM contract; Schedule 2 of the Marshmans contract, Schedules 2 and 3 of the 2002 contract and Schedules 1 and 2 of the 2004 contract.
50 Powercor's business can be identified from what the company was licensed to do under the Electricity Industry Act, the evidence of Mr Minster (Powercor's Manager of Industrial Relations and Human Resources Systems) and Mr Lang (currently Powercor's Manager of Asset Maintenance and, as at 1997, the company's Manager - Connection Services) as well as from the regulatory framework that governed its activities as a licensee under the Electricity Industry Act.
51 The purpose of the Electricity Industry Act is and was to regulate the electricity supply industry in Victoria: see s 1. The generation, transmission and distribution of electricity is and was at the relevant times subject to a licensing regime: see s 16. Provision was made for the application for and grant of licences: see ss 18 and 19. Licences are and were subject to conditions determined by the Essential Services Commission (formerly the Office of the Regulator-General): see ss 20-21. These conditions include conditions relating to customer-related standards, procedures, policies and practices: s 26. By virtue of s 40A(5), a distribution company (as defined in s 3) and a retail customer (as also defined in s 3) are and were deemed to have entered into a contract on approved terms and conditions, of which notice had been given in conformity with subs 40A(4). Section 44 made provision for the regulation of metrology procedures.
52 At the relevant time, Powercor distributed electricity pursuant to an Electricity Distribution Licence issued under the Electricity Industry Act ("the licence"). Clause 2, which dealt with the grant of the licence provided that:
Subject to the conditions set out in this licence, the Licensee is licensed to distribute electricity for supply, and to supply electricity, in the distribution area and using distribution fixed assets.
The licensee's obligations included the provision of connection services on a customer's or retailer's request: see clauses 5-8 & 10-11. The licensee was required to issue national metering identifies: see clause 14. The licence also obliged Powercor to comply with various Codes, including the Electricity Distribution Code ("the Distribution Code") and the Electricity Customer Metering Code ("the Metering Code"): see, e.g., clause 21.
53 In summary, under the licence, Powercor distributed electricity for supply, to customers in the distribution area of western Victoria and western metropolitan Melbourne, using certain fixed assets. The licence imposed no obligation with respect to meter reading. The licence proved no support for the proposition that Powercor's business was or included meter reading.
54 The evidence of Mr Minster established that Powercor's principal business pursuit was the distribution of electricity over what was called a Network and involved transporting electricity from the various transmission terminal stations to zone substations and then to the end customers. The Network was a collection of assets such as poles, wires and substations, which Powercor owned and used to distribute the electricity. Mr Minster's evidence established that Powercor sold its retail arm in 2001. His evidence also established that, as at 4 October 2007, Powercor owned 69 zone substations, 520,000 poles and over 82,500 kilometres of line length.
55 The evidence of Mr Minster showed that, with respect to distributing electricity, Powercor was divided into two main business units, namely:
(1) the Powercor Network Business Unit ("Network Business"), which was responsible for managing and developing the various assets that were used in electricity distribution; and
(2) the Powercor Services Unit ("Powercor Services"), which provided operational maintenance, engineering and contracting services for the Network Business.
The Network Business employed managers, engineers, system controllers and technical experts. Powercor Services employed managers, engineers, project managers, line workers, substation fitters and electricians, technical officers and designers. Powercor generated most of its revenue by charging the retailers of electricity a fee for the use of the Network.
56 As a licensed electricity distributor, as indicated at [52] above, Powercor had obligations to comply with the various Codes governing the electricity industry in Victoria, including the Distribution Code and the Metering Code. These latter Codes dealt with Powercor's obligations as a distributor, particularly with regard to the supply and maintenance of assets. None of these Codes expressly required Powercor to make standard meter readings, although the Metering Code imposed obligations with respect to meters and the collection of data and, in certain circumstances, special meter readings.
57 The Distribution Code as at January 2002 required that the distributor "provide, install and maintain standard metering and necessary associated equipment, at a suitable location to be provided by the customer": see clause 2.1.1. Other obligations in the Distribution Code related to the management of the distribution assets (clause 3), the quality and reliability of the supply (clauses 4 and 5), and guaranteed service levels (clause 6). Save for clause 14, which required a distributor and a customer to comply with the Metering Code, metering was not otherwise dealt with in the Distribution Code.
58 The distributor's obligations in relation to metering customers' electricity usage were set out in the Metering Code: see, e.g., clauses 1.1, 5.1, 7.1, 9.1, 12.1, 13, 14.1 and 15.1. The Metering Code applied to a range of persons, not simply distributors. The Metering Code dealt with such matters as the location, installation and repair of metering equipment (clauses 2.3, 7.1, 12.1 & 6.1), the sealing of metering equipment (clause 4), the provision of a national metering identifier (clause 8), testing of metering equipment and accuracy assurance (clauses 9 & 10), and access to data (clause 14). Clause 13 concerned special readings. It provided that, "[o]n request by a retailer, a distributor or a responsible person (as the case may be) must use best endeavours to carry out a special meter read or an estimated read to enable the transfer of a customer to that retailer within a reasonable time of the request" (italics original). Clause 15.1 provided for an obligation to collect data, stating that "[i]n relation to the supply of electricity to a first tier customer, a distributor must collect data stored in metering equipment as frequently as is required to enable the retailer to discharge its minimum obligations under the Electricity Retail Code" (italics original). (Amongst other things, the Electricity Retail Code obliged the retailer to connect a customer who wanted the service and to render a bill based on a reading of the customer's meter: see clauses 2 & 5.1.) Also under the Metering Code, there were further obligations in relation to the estimation of energy data, the validation and substitution of energy data, and the storage of energy data (clauses 16-17 and 19). In addition, the Metering Code made provision for the relationship between the distributor and bodies engaged to provide a metering function for the distributor: see clause 1.4.
59 Nothing in the Codes as discussed above would support the proposition that Powercor's business was or included meter reading. Nothing in them detracts from the proposition that, at the relevant time, Powercor's tangible assets were overwhelmingly deployed in operating and maintaining the Network to distribute electricity. Furthermore, as counsel for AMRS noted, the licence was also an asset for the business of using the Network to distribute electricity. Powercor was not in the business of meter reading or in a business that included the business of meter reading.
60 This conclusion is borne out by Mr Minster's evidence concerning the supply of meters and the role of meter readers. His evidence established that premises supplied with electricity by Powercor were equipped with a meter that recorded how much electricity was used at the premises over a period of time. It was the primary task of the standard meter reader to read the meter and record the data onto a PDE device. The data on the PDE device was subsequently downloaded onto a computer and transported to a central information system accessed by Powercor. Powercor conveyed the information to retailers in order that they might bill their customers. The information gathered from reading the meters also enabled Powercor to establish how much to charge retailers for the use of the Network. Powercor did not derive revenue from meter reading directly.
61 I reject the submission for Mr Urquhart that meter reading was a part of Powercor's business for the purposes of ss 149(1)(d) and/or 170MB(2) of the Workplace Relations Act. Meter reading was not a central part of Powercor's licence obligations, as counsel for Mr Urquhart argued. It was an aspect of data collection. As noted already, under the Metering Code, Powercor was obliged to measure the use of electricity by a customer, in order that the retailer might bill the customer correctly and Powercor might charge the retailer appropriately for the use of the Network. The meter reading function was not, however, the same as the measurement of electricity usage. The meter reading function involved recording data measured by the meter in a PDE device and downloading this data from the PDE device onto Powercor's information system. This function of meter reading was ancillary to its obligation to measure the use of electricity, which was itself ancillary to the business of Powercor, which was the use of its assets to distribute electricity. Counsel for Mr Urquhart also drew attention to the broader role of meter readers in reporting faults and other safety issues but this emphasises the ancillary nature of the meter reading function.
62 Counsel for Mr Urquhart relied on CFMEU v Henry Walker Eltin in support of his submission that meter reading was a part of the business of Powercor. CFMEU v Henry Walker Eltin should, however, be distinguished from the present case. In CFMEU v Henry Walker Eltin,the union sought a declaration that, pursuant to 170MB(2), the company ("HWE") was bound by a certified agreement in relation to operations of the coal handling preparation plant previously operated by Ebenezer Mining Company Pty Ltd ("Ebenezer"). Branson J upheld the union's claim. Her Honour found that, on the evidence before her, "the overall business of Ebenezer is, broadly speaking, that of causing coal to be extracted from the Mine and rendered fit for sale, and selling that coal either for export or domestic consumption" and that "the overall business of HWE is that of contractor to the mining and construction industries": see CFMEU v Henry Walker Eltin at 416-17. Her Honour further found that the operation of the coal handling preparation plant was "itself carrying on" of the second aspect of Ebenezer's business - the rendering of coal fit for sale. Thus, Branson J held (at 417) that the operation of the plant was a distinct part of the business of Ebenezer's business "in the sense of a project or undertaking forming part of its overall business or a distinct operational unit within its overall business". The operation of the plant was not, therefore, merely ancillary to Ebenezer's business.
63 For the reasons stated above, apart from lesser businesses in the engineering and construction sector which are not presently material, the business of Powercor was the use of the Network for the distribution of electricity to the area under licence. Meter reading was not a distinct part of this business, as Mr Urquhart would have it. Meter reading was not a distinct project or undertaking in the sense of the operation of the plant by HWE, as discussed by Branson J in CFMEU v Henry Walker Eltin. Accordingly, CFMEU v Henry Walker Eltin does not assist Mr Urquhart's case.
If meter reading was a part of Powercor's business in 2002, was there a transmission to AMRS?
64 I address this second question on the basis that, contrary to the above finding, meter reading was a part of Powercor's business in 2002.
65 In final submissions, AMRS submitted that there was no transmission because, under the licence, the Distribution Code and the Metering Code, Powercor retained the obligations to install and maintain meters and collect the data from them. AMRS itself has little or no discretion as to how the meters were read, and no control over, or interest in, Powercor's business. Rather, so AMRS said, it simply employed staff to provide meter-reading services. In addition, AMRS noted a number of other facts said to show lack of transmission, including that: (1) no goodwill or other assets changed hands; (2) the 2002 contract and the 2004 contract were terminable in a variety of circumstances; and (3) under these contracts, Powercor retained the right to read meters itself at any time (i.e., the contracts conveyed no exclusive right or licence to AMRS with respect to the reading of Powercor's meters).
66 In response, counsel for Mr Urquhart argued that "transmission" was a non-legal concept and did not depend upon privity or any formal legal transfer of rights between the parties. Moreover, he submitted that the Court should not give weight to the consideration as to whether or not Powercor technically retained rights or obligations with respect to meter reading, because to give weight to this consideration would not reflect commercial reality. He referred to North Western Health Care and Australian Rail Tram and Bus Industry Union v Torrens Transit Services Pty Ltd (2000) 105 FCR 88, which applied North Western Health Care. Both cases concerned, amongst other things, a transmission of the business of State government or department and, in any event, for the reasons appearing below, since PP Consultants and Gribbles, North Western Health Care can no longer be said reliably to state the law in this area.
67 For the reasons that follow, I accept the submissions of AMRS and reject those of Mr Urquhart.
68 Although the authors of the joint judgment in PP Consultants decided that case primarily on the basis of the characterisation test referred to earlier, holding that the pharmacy was not engaged in the banking business, they also added (at 656):
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 [pharmacy], whether as successor, assignee or transmittee.
In effect, the joint judgment in PP Consultants set out two tests for succession, assignment and transmission - a characterisation test (discussed above) and a disposal test. Both tests must be satisfied in order for the operation of the award (under s 149(1)(d)) or the certified agreement (under s 170MB(2)) to be attracted to the new employer.
69 As it happened, in his separate judgment, Callinan J (agreeing with the joint judgment in the result) considered the issue of disposal at greater length than in the joint judgment. After noting considerations that were not dissimilar to those relied on by AMRS, his Honour identified the question that he considered should be asked: see PP Consultants at 664. Adapted to this case, this question is, what 'business', which Powercor is said to have transmitted to AMRS, could AMRS sell or otherwise pass on to someone else? If this is a correct question to ask in connection with transmission, for the reasons stated below, the answer, as in PP Consultants, would be "no business". Callinan J's conclusion (at 665) that "[t]he business of the bank had not 'passed'"; rather "[a] new form of business was created (by agreement) and was to be carried on by a new operator as an agent" might also summarise the effect of the 2002 contract. Under the 2002 contract, the business of Powercor did not pass (and was not transmitted). Rather, under the contract, AMRS was to carry on a new business of meter reading for Powercor.
70 The foregoing notwithstanding, I might still be in some doubt as to the correct analysis to be followed had PP Consultants not been succeeded in the High Court by Gribbles. The combined effect of these two decisions is, so it seems to me, to make the relevant state of the law reasonably clear with respect to provisions like ss 149(1)(d) and 170MB(2) of the Workplace Relations Act. In Gribbles, the High Court confirmed that the characterisation test (identifying the business or part of a business) and the disposal test (determining whether the business or part of a business so characterised was disposed of) are separate and distinct questions. Thus, in their joint judgment in Gribbles, Gleeson CJ, Hayne, Callinan and Heydon JJ stated (at 213):
[T]he need, when considering the application of s 149(1)(d) [is] to do two things. First, it is necessary to identify exactly what is meant in the context of the particular case, by 'the business or part of the business' of the former employer. Secondly, it is necessary to identify what part of that 'business' the former employer once had which is now enjoyed by the person allegedly bound by the award.
71 Before discussing Gribbles further, I would acknowledge that, as counsel for Mr Urquhart observed, Gribbles is distinguishable in at least one respect from this case because Gribbles, in contrast to this case, involved no direct transaction between the former employer and the new employer. That is, Gribbles involved the question whether there had been a "succession" by the new employer to the old employer's business, and did not involve a question of "transmission": see Gribbles at 203-204 and 208. This distinction does not, however, affect the critical reasoning in Gribbles, as the majority judgment shows.
72 The majority in Gribbles (at 212) acknowledged the distinction, by observing that the answer as to whether there has been an assignment, succession or transmission:
… will be provided by looking at some transaction between the two employers. Where there has been some transaction between them, it will be possible to see whether the former employer transferred the whole, or part, of its business to the new employer. But in other cases there may be no transaction between the former employer and the employer alleged to be its successor … Thus, the existence of some transaction between the two employers is not essential in order to show that one is the successor to the business of the other. Further, whether or not there was some transaction between the new employer and the former employer, there may be a real question about whether what the new employer enjoys is the whole or a part of the 'business' of the former employer.
73 In this case, unlike Gribbles, there was a direct transaction between the former and the new employers, as expressed in the 2002 contract (and, subsequently, transactions expressed in the 2003 contract and the 2004 contract). Accordingly, this (like PP Consultants) is one of the "many cases" where the answer is to be found by considering the transaction between the former and the new employers.
74 It is worth noting that, in Gribbles, the characterisation test was on the facts of the case easily satisfied in contrast to PP Consultants where it was not satisfied at all: see Gribbles at 214. The majority in Gribbles (at 214-15) thus focussed on the disposal test or, from the new employer's perspective, the enjoyment test, whilst this aspect called for very much less attention in PP Consultants. Considered in this way, PP Consultants and Gribbles are complementary aspects of the overarching question - whether there has been a transmission, succession or assignment.
75 Assuming (contrary to the finding above) that the characterisation test is satisfied since meter reading constituted a part of the business of Powercor, the critical question is that presented in Gribbles - whether it can be properly said that Powercor disposed of a meter reading business, which is now enjoyed by AMRS.
76 In the present case, there is a degree of artificiality about this inquiry since it fails to take account of the fact that the former employer (Powercor) had entered into similar contracts with VMM and Marshmans immediately before entering into the 2002 contract with AMRS. In this context, if there was a transmission to AMRS, it must be assumed that either similar transmissions to VMM and Marshmans were limited to the duration of their respective contracts or, for some unapparent reason, the transactions between Powercor and VMM and Marshmans were relevantly different, with the consequence that there was no previous transmission. I do not stop to investigate these possibilities further because, in my view, there was no transmission between Powercor and AMRS. The critical question in Gribbles - whether it can be said that Powercor disposed of a meter reading business that is now enjoyed by AMRS - on the facts as disclosed in the evidence must be answered "no".
77 The majority judgment in Gribbles shows that some aspects of the transaction between Powercor and AMRS are more relevant than others to the disposal/enjoyment test. In particular, it must be asked whether the new employer has acquired any of the tangible or intangible assets of the old employer: compare Gribbles at 212. In Gribbles, the majority found that, by the relevant transaction, the new employer did not come to enjoy either the tangible assets of the former employer (i.e., the former employer's equipment) or the intangible assets of the former employer (i.e., the former employer's goodwill): see Gribbles 214. Further, citing Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014, the majority also recognised that, while both former and new employers employed the same employees, "no employee is an asset in the employer's balance sheet to be bought or sold": Gribbles at 214. Accordingly, the majority concluded that the former employer had not disposed of any part of its business and the new employer was not, therefore, a successor to or of any part of the business of the former employer because "[a]t no time did [the new employer] enjoy any asset of the [former employer], tangible or intangible, which [the former employer] had used in the pursuit of its business activities": see Gribbles at 204. This test is substantially identical to that proposed by Callinan J in PP Consultants (at 664) in that his Honour there asked whether there was anything for the new employer "to sell or otherwise pass on to someone else".
78 The uncontroverted evidence was that Powercor had and retained ownership of the relevant tangible assets. Under the 2002 contract, the meters and certain equipment (such as the PDE devices, sealing tongs and seals, and magnetic logos) were and remained Powercor's property, although AMRS's employees used this equipment in reading Powercor's meters. Thus, the employees of AMRS had the use of the PDE devices to receive information from and convey data to Powercor. AMRS was responsible for providing its employees with other items, which were not derived from Powercor. Furthermore, under the 2002 contract, AMRS undertook meter reading services for Powercor but not on the basis that AMRS had an exclusive right to provide these services. The contract was terminable in the circumstances set out (including where Powercor reasonably considered that the services of AMRS were no longer required having regard (amongst other things) to business needs - on one month's notice or payment in lieu). Powercor was not prevented from undertaking a meter reading function during the currency of the contract if it so chose. (Different provisions were made under the 2003 and 2004 contracts for some of these matters, as for example termination, but none relevantly altered the relationship between Powercor and AMRS.) The licence to distribute was and continued to be held by Powercor. AMRS did not argue that it had acquired any intangible asset, such as goodwill; and, in any event, the evidence was clearly to the contrary.
79 The contractual regime that Powercor adopted with AMRS was consistent with the regulatory regime governing it as a licensed electricity distributor. The obligations that the licence and, thus, the Distribution Code and Metering Code imposed on Powercor, including with respect to meters and data collection (see [57]-[58]), stayed with Powercor. Powercor was subject to significant penalties (in the nature of fines and the revocation of the licence) in the event of non-compliance. See, in this regard, the Essential Services Commission Act 2001 (Vic), s 53; and Electricity Industry Act, ss 29(3), 16 and clause 3.4 of the licence.
80 It might be said that the High Court's analysis of the operation of s 149(1)(d) and like provisions allows employers, in effect, to "contract out" of their obligations under awards and certified agreements with comparative ease. In PP Consultants (at 666) Callinan J sought to meet this objection, in the following way:
Whilst it may be accepted that a purpose of the provision is to prevent evasion of obligations by employers who do succeed to a business or part thereof, there is another policy consideration which bears on this case. The legislation, it may be inferred requires a common identity of a business or part thereof, into whosoever hands it falls, on the assumption that a successor will have the same and continuing capacity to meet the obligations arising under an award as the former operator of the business. No such assumption may safely be made about a different business.
81 This was a different approach to that of the Full Court of this Court in North Western Health Care in which R D Nicholson J stated that "[t]he policy objective of this provision is to make the power to settle industrial disputes effective by extending the instrument of settlement to 'the ever changing body of persons within the area of such disturbances'": North Western Health Care at 485; also 502 per Madgwick J.
82 These fundamental differences in perspective and approach have been the subject of scholarly discussions, which have proposed alternative analyses: see, for example, Trent D Sebbens, "'Wake, O Wake' - Transmission of Business Provisions in Outsourcing and Privatisation" (2003) 16 Australian Journal of Labour Law 133. This Court is, however, bound to follow PP Consultants and Gribbles, which provide a clear answer in this case.
83 In summary, by the transactions in question, Powercor did not convey ownership of any tangible or intangible assets to AMRS. It cannot be said that Powercor disposed of, or that AMRS enjoyed, any part of Powercor's business, however characterised. AMRS is, therefore, not a transmittee of Powercor's business or part thereof such as to attract the operation of the 1998 Award, the 1999 Agreement and the 2002 Agreement (see [4]) to the employment of Mr Urquhart by AMRS.
84 For the reasons stated, I would dismiss the application.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.