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[2002] AIRC 651
appellant. Appeal allowed. The respondent's jurisdictional objection was dismissed. Ms Morgan's application was referred to Williams SDP for allocation for conciliation and further process under the Act...
The Full Bench held that the Award could bind the Northam Pharmacy business even though it identified the pharmacy by its business name rather than naming Kittochside as a company. Kittochside was not merely a remote payroll or service provider: it supplied staff and assets, and Reid was closely involved with both Kittochside and the pharmacy. The Full Bench therefore found that Kittochside was bound by the Award, making Morgan a federal award employee for the jurisdictional question. It allowed her appeal and sent her application on for further processing. It did not decide whether Australian law recognised joint employment.
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2,394 words · generated 28/09/2026
This 2002 decision concerns the jurisdictional threshold for a termination-of-employment claim under the Workplace Relations Act 1996. Wendy Morgan worked as a pharmacy assistant at Northam Pharmacy from December 1995. When she began, pharmacist Mark Wood operated the pharmacy and, on the Full Bench's findings, Sandhurst Nominees Pty Ltd employed her ([16]).
3 cited instruments linked from this judgment.
The business changed hands in about September 1999. Matthew Reid became the pharmacist and manager. Kittochside Nominees Pty Ltd, a company of which Reid was sole director, had entered a service agreement with Reid, trading as Northam Pharmacy. The agreement, made on 2 August 1999 and operating from 1 September, required Kittochside to supply shop-assistant staff, administration, and fixtures, fittings and equipment for a cost-plus fee ([17], [19]–[21]). Morgan continued working in the same pharmacy. The Full Bench found her employment effectively continuous, with no material change to her duties or conditions other than the identity of her employer ([17]).
Morgan's employment was terminated by written notice on 19 April 2001. The notice, on Northam Pharmacy letterhead, was signed by Reid for Kittochside. It referred to alleged serious misconduct and a breakdown in the employment relationship ([22]). Morgan was acquitted of a related criminal charge in August 2001. She then applied to the Commission under s 170CE, initially naming Reid personally and later amending the employer to Kittochside ([23]).
The jurisdictional issue was not whether Kittochside employed Morgan or was a constitutional corporation. The judgment records those matters as undisputed. The issue was whether Morgan was a “Federal award employee”, which required at least one term or condition of her employment to be governed by an award, certified agreement or AWA ([24], [38]–[39]). The relevant instrument was the Retail and Wholesale Industry Western Australian Community Pharmacy Consent Award 1995.
Commissioner O'Connor found that the Award did not bind Kittochside, either because it was not named or by transmission. He therefore concluded that the Commission lacked jurisdiction over the s 170CE(1)(a) claim ([25]). The Full Bench granted leave to appeal and overturned that jurisdictional conclusion. It held that the Award bound Kittochside, dismissed the jurisdictional objection and referred the application for further processing ([41], [78]–[80]). It did not determine whether the termination was harsh, unjust or unreasonable.
The Full Bench took two principal routes to its conclusion. First, it construed the Award's description of the respondents by pharmacy business name as capable of binding the continuing business and the employer carrying it on. Secondly, it found that Kittochside was sufficiently involved in the pharmacy business to be bound through the statutory transmission provision.
The Award said it bound the Guild, the employers named in Schedule A and the union. Schedule A named “Northam Pharmacy” at its address, rather than specifying the legal name of the owner or employing company ([27]–[28]). The Full Bench considered the Award in context: it covered pharmacy assistants in community pharmacies across Western Australia, and its dispute and award-making history showed that the pharmacy businesses had been identified collectively by their business names ([30], [54], [57]–[58]).
The Full Bench rejected the proposition that describing an employer by business name was necessarily ineffective. It referred to authorities in which descriptions that did not state a precise legal name had nevertheless been treated as sufficient where the intended entity could be ascertained. The judgment's point was not that every business name automatically identifies a legal employer. Rather, it was that the intention and the identity of the entity or entities could be determined from the description and relevant context ([59]–[62]). It concluded that the Award was intended to cover whoever employed pharmacy assistants in carrying on the Northam Pharmacy business. On that construction, the Award continued to bind the business whoever its employer might be ([63]).
The second route was s 149(1)(d). The Full Bench noted that this provision applied to a successor, assignee or transmittee to or of a business or part of a business of an employer who was a party to the industrial dispute ([45]–[46]). It treated transmission as a question of substance rather than form. Drawing on the authorities discussed in the judgment, it considered that the statutory terms were not confined to conventional transactions such as a sale, formal assignment or corporate takeover. A sufficient relationship could be inferred from conduct or connection touching employment in the relevant activity ([49]–[52]).
The evidence established a complete transfer of the pharmacy business from Wood's control to Reid's control. The relevant facts about Kittochside went further than the existence of a service contract in the abstract. Kittochside undertook to supply the assistants, administration and business equipment, and the Full Bench inferred that it performed those obligations. Reid was both the pharmacy operator and Kittochside's sole director. In practice, he directed and controlled the pharmacy assistants ([65]–[67]). The Full Bench therefore described Kittochside as “part and parcel” of carrying on the pharmacy business and as a transmittee of part of it ([67]).
The statutory setting mattered to that assessment. The judgment considered the Pharmacy Act 1964 (WA), including provisions concerning who could carry on pharmacy practice and the required supervision by a registered pharmacist ([21], [33], [44], [67]). Those provisions helped explain how a company such as Kittochside could participate in pharmacy operations under Reid's supervision. They were part of the factual and legal context, not a stand-alone basis for deciding award coverage.
The Full Bench also reasoned that Reid and Kittochside functioned in practice as joint venturers in the pharmacy business. It treated “joint venture” as a descriptive expression, not a fixed legal category, and relied on the service agreement and the substantial overlap in control, purpose and operations ([68]–[71]). It held that the connection was enough to make Kittochside an ascertained participant and transmittee under s 149 ([71]). Because these grounds resolved the issue, the Full Bench did not need to decide whether Morgan had two joint employers.
Before this decision, Commissioner O'Connor had treated the absence of Kittochside's company name from the Award, and the absence of a demonstrated transmission, as fatal to jurisdiction ([25]). The Full Bench's decision changed the result in Morgan's case by treating the business-name description and the evidence of Kittochside's participation as sufficient to establish that the Award bound her employer ([63], [67], [71], [78]).
The judgment's account of the applicable law is tied to the Workplace Relations Act 1996 and the Award in force in the case. It states that s 170CD(1) required only that any term or condition of employment be governed by an award, certified agreement or AWA, rather than requiring all employment conditions to be award-regulated ([38]–[39]). It also emphasises that the Commission's jurisdiction depended on the objective existence of the relevant employment category, not simply the first-instance Commissioner's opinion about it. The Full Bench relied on Pawel for that approach to jurisdictional and constitutional facts ([37]).
On transmission, the judgment stressed that s 149(1)(d) referred to a transmittor who was an employer party to the industrial dispute. It distinguished that wording from other provisions it mentioned, including s 61 of the former Act and s 170MB, which used different language ([46]). It also explained that the statutory connection need not be located in a particular formal transaction: the inquiry could examine the business before and after, and the conduct linking the former and new employer ([49]–[52]).
The decision is not a general ruling that any service company supplying staff to a business is bound by an award. The Full Bench relied on a particular combination of facts: a named and continuing pharmacy business, a transfer of that business as a going concern, Kittochside's provision of staff and assets, and Reid's connected roles in the service company and pharmacy ([48], [65]–[71]). Nor did the decision settle the status of joint employment under Australian common law. The Full Bench expressly left that issue undecided ([72]–[77]).
The judgment does not establish what later courts decided about Morgan or how they treated this precedent. The material supplied contains citations to authorities considered by the Full Bench, but no later judicial treatment of this decision. A claim about its subsequent reception would therefore need sources beyond this judgment.
At [39], the Full Bench says that an employee can qualify as a federal award employee if “any” term or condition is governed by an award, certified agreement or AWA. In plain English, the judgment did not require the whole employment relationship to be governed by an award.
At [46], it states that for s 149(1)(d) to operate, “the transmittor must be an employer who was party to the industrial dispute.” This identifies a statutory threshold for transmission. The Full Bench did not treat it as enough that the former business was merely associated with an award; the statutory description of the former employer and dispute party had to be met.
At [52], it explains that once a new employer is involved in the transmitted business, a sufficient connection may be inferred from conduct or a connection touching employment in the relevant activity. This is the judgment's practical explanation of how a transmission link may be established without requiring a particular form of sale or assignment.
At [63], the Full Bench says the Award bound “the business as such whoever may be the employer.” The phrase captures its construction of the Award's business-name description. It does not mean that the legal identity of an employer is irrelevant in every award case. The Full Bench relied on the specific Award wording, its history and the ability to ascertain the covered pharmacy business and its employer ([54], [58]–[63]).
At [67], the Full Bench describes Kittochside as “part and parcel” of carrying on the pharmacy business. In ordinary language, it found that Kittochside's involvement was integrated into the business, rather than peripheral. The service agreement, staff provision, assets and Reid's dual role supported that finding ([65]–[67]).
At [73], the Full Bench says the compatibility of joint employment with the common law employment relationship was “moot”. That means the question remained open in this decision. The Full Bench's comments at [75]–[76] indicate a tentative view, but the outcome did not rest on a final ruling about joint employment.
The reasoning is most directly relevant to a situation involving an award that identifies employers by a continuing business or trading name rather than by each employer's formal legal name. The judgment suggests that the key questions include whether the award's intention is clear and whether the relevant employer can be ascertained from the instrument, dispute history and business context ([58]–[63]).
It is also relevant where a business changes hands but employees continue doing substantially the same work in the same operation, and an associated service entity supplies employees, equipment or administrative functions. The decision shows that a transmission analysis may examine what business activity and employment-related functions passed, and the practical connection between the former operation, new operator and service company ([48], [65]–[71]).
The particular linkage here was unusually concentrated: Reid operated the pharmacy, was the sole director of Kittochside, and directed the assistants whom Kittochside supplied ([21], [65]–[67]). The Full Bench also found the Award's named business was represented in the original dispute process and intended to cover the employer or employers operating that business ([54], [62]). Those facts matter when comparing this case with one involving only an arm's-length contractor, a different business, or an award that expressly names a particular legal entity.
The decision also concerns the jurisdictional definition of a federal award employee under the historical Act. Its relevance to another matter would depend on the applicable legislation, the terms of the relevant award and the evidence about the employer and business. The judgment itself does not determine how later legislation or a differently worded award applies.
The supplied judgment does not identify later decisions citing or applying Morgan. It therefore does not support a reliable account of subsequent treatment, whether the reasoning was followed, distinguished or criticised.
What can be said from the judgment is that its own reasoning drew on authorities then available. It applied the jurisdictional-fact approach described in Pawel ([37]). It considered the High Court decision in PP Consultants and the Federal Court's discussion in Employment National when explaining the breadth of the transmission concept ([49]–[51]). It also discussed earlier authorities about identifying award respondents by collective or business descriptions ([59]–[61]).
Those relationships describe the Full Bench's use of earlier authorities, not what later courts did with Morgan. Establishing subsequent treatment would require later judgments or a case-citation history not included in the material provided.
The clearest question left open is whether Australian law recognised joint employment in the circumstances of a labour service provider and client business. The Full Bench said the compatibility of the idea with the common law employment relationship was moot and that it was unnecessary to decide the point ([72]–[75]). It made tentative observations about co-determinative control and the flexibility of common law analysis, but expressly left the doctrine for possible future examination ([76]–[77]).
The judgment also leaves questions about the limits of its business-description reasoning. It concluded that Northam Pharmacy was an effective description in the context of this Award, where the business was named, the dispute record identified it, and the employer parties were intended to be covered as the business continued ([54], [58]–[63]). It does not decide that every award naming a trading business will bind every later company associated with that name.
A further question concerns the evidentiary threshold for transmission when the service provider's role is less extensive. The Full Bench relied on staffing, business equipment, administrative services, common control and the transfer of the pharmacy operation ([65]–[71]). It did not set out a universal checklist or numerical threshold for deciding when those connections are sufficient.
Finally, this was an appeal about jurisdiction, not the merits of Morgan's termination claim. The Full Bench's disposition allowed the application to proceed to conciliation and further process. It did not decide the allegations about misconduct or whether the termination was harsh, unjust or unreasonable ([22], [79]–[80]).
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s.45 appeal against decision [PR911326]
issued by Commissioner O'Connor on 15 November 2001
s.170CE application for relief re termination of employment
Appeal; termination of employment; appeal against decision that Commission has no jurisdiction; whether applicant was Federal award employee employed by a constitutional corporation at time of termination of employment; application of relevant award; section 149; business in which applicant employed was a pharmacy operated by a registered pharmacist; actual employer a service company acting as trustee for family trust; parties to industrial dispute and to consent award listed by business name; original owner of business and related entities trading as named party to industrial dispute were parties to dispute; whether transmission of business in a way that bound current actual employer; service company was part and parcel of the carrying on of the business bound by the award; transmission need not be in specific legal form; service company engaged in business transmitted as a joint venturer, therefore bound as transmittee; question of whether concept of joint employment applied in US Labor Law to certain labour hirers compatible with common law raised but not decided; leave to appeal granted on question of jurisdictional fact; appeal allowed.
[1] In this matter, Ms W.J. Morgan (the Appellant), lodged a notice of appeal under section 45 of the Workplace Relations Act 1996 (the Act) on 3 December 2001 against a decision of O'Connor C issued on 15 November 2001[1].
[2] Ms Morgan had lodged, on 6 September 2001, an application for relief under section 170CE of the Act in relation to the termination of her employment at the Northam Pharmacy. That application nominated her former employer as Matthew Reid, the Pharmacist operating that business. By leave the application was later amended to nominate the employer as Kittochside Nominees Pty Ltd (the Respondent). Kittochside Nominees Pty Ltd is the trustee of Mr Reid's Family Trust. By a service agreement with Mr Reid, trading as Northam Pharmacy, Kittochside provides services through the provision of staff, shop assistant personnel as required by the business, general administration and shop fixtures, fittings and equipment[2].
[3] The Respondent objected both to jurisdiction and to an extension of time to allow the application to be lodged. O'Connor C upheld the respondent's objection that the Commission lacked jurisdiction on the ground that Ms Morgan was not a federal award employee employed by a constitutional corporation. O'Connor C allowed the lodgement of the application out of time, and amended the application to incorporate a ground based on section 170CM of the Act. No appeal was lodged against those elements of his decision. He held that the Commission had no jurisdiction to deal with the application insofar as it relied upon paragraph 170CE(1)(a) of the Act. The notice of appeal is against that decision.
[4] The parties to the appeal were directed to exchange full written submissions. In compliance with that direction, the Appellant lodged written submissions on 18 March 2002. The Respondent lodged a written submission in reply on 9 April 2002. For the purpose of allowing a short oral presentation of cases, the parties were heard on 17 April 2002. At that hearing, Mr G. McCorry, appeared by leave as agent for the Appellant and Mr D. Howlett, of Counsel, appeared by leave for Kittochside Nominees Pty Ltd.
[5] On 17 April 2002 we invited further submissions to be made addressing the content of material later attached to a written Direction issued on 22 April 2002. That material comprised details from the Commission file recording the finding of dispute and other proceedings antecedent to the making of the Retail and Wholesale Industry - Western Australian Community Pharmacy Retail Shop Distributive Allied Employees Association - Retail Pharmacy Guild of Australia Consent Award 1995 (the Award). Written submissions and a reply were made and lodged by each party by 1 May 2002[3].
[6] Mr McCorry, on behalf of the Appellant, submitted that, on a proper construction of the Award, the expression "All the employers named on Schedule A of this Award" in Clause 8 must be construed and was intended by the parties to mean the legal entities carrying on the pharmacy businesses listed by trading name at the locations specified in Schedule A (that employ pharmacy assistants).
[7] He argued that construction to be a reasonable and logical inference in light of the following factors:
· the Award, a consent award, applies to a large number of pharmacies in Western Australia but fails to identify - in Schedule A - any legal entity as an employer upon whom it is binding;
· the words "All the employers named on Schedule A of this Award" would be unnecessary if the Award was intended to apply only to members of the Guild;
· it is a requirement of the Pharmacy Act 1964 (WA) that a natural person operate a pharmacy;
· it is industry practice that pharmacists engage staff through corporations rather than employ them in their personal capacity; and
· the parties to the Award would have been aware of industry practice in relation to the manner in which staff were engaged to work in pharmacies.
[8] Mr McCorry submitted that the Commissioner erred in finding that no evidence was brought to demonstrate that the Award bound Kittochside. In particular, Mr McCorry submitted that it was open for the Commission to find, and the Commission should have found, that:
· on a proper construction of Clause 8 and Schedule A of the Award, read together with the Pharmacy Act 1964 (WA), the Award is binding on each legal entity that is an employer or prospective employer operating in or in connection with a pharmacy or pharmacist named in Schedule A;
· at the time the Award issued, the Appellant was employed by a corporation that operated in or in connection with a pharmacy or pharmacist named in Schedule A;
· the Respondent corporation, whose principal is an admitted member of the Guild, is a successor, assignee or transmittee of the business or part of the business within the meaning of section 149 of the Act;
· the Respondent is accordingly bound by the terms of the Award; and
· the Appellant was a federal award employee employed by a constitutional corporation at the time of her dismissal within the meaning of subsection 170CB(1) of the Act.
[9] In response to the material attached to the Direction issued on 22 April 2002 (the Direction), Mr McCorry submitted that at the date the award was made:
· the Award was binding on the corporations who were listed imperfectly in Schedule A of the dispute notification as well as members of the Guild personally and on any joint venture between the relevant corporation and a Guild member so bound[4]. The transcript of the hearing before Dight C indicates that the letters of demand were addressed to the Secretary, by law an office-holder in a corporation, with the intent that they be acted upon by a corporation.
· the Award applied to the employment of the Appellant because she was engaged by a corporation (or the Guild member who had been served with the letter of demand and log of claims) who appeared or was represented by the Guild before the Commission.
[10] Mr McCorry submitted that on the evidence a transmission of business is established. The Service Agreement between Matthew Reid and the Respondent, Kittochside, and the evidence of the Appellant and Matthew Reid as to the identity and actions of the employer, irrefutably establish that the Respondent carried on the business or part of the business of the Northam Pharmacy. If the Respondent carried on part of the business, or carried on the business in a joint venture with Matthew Reid[5], there must have been a transmission, succession or assignment within the meaning of paragraph 149(1)(d) of the Act.
[11] On that basis, Mr McCorry argued that it was in the public interest for the appeal to be heard and determined because questions are raised about:
· the power of the Commission to make an award where a recognised legal entity is not specified in the list of named respondents to the award (and presumably the list of parties to the dispute that underpins it);
· the ability of the Commission to rectify a defect in the scope clause of the award so that the list of respondents identifies a recognised legal entity.
[12] Mr Howlett, on behalf of the Respondent, submitted that leave to appeal in this matter should be refused because no errors were made by O'Connor C in reaching his decision. The principal points made on behalf of the Respondent may be summarised as follows:
· the Respondent discharged the onus of disproving jurisdiction in relation to the application under section 170CE;
· the evidence establishes that the Appellant was employed by the Respondent, Kittochside Nominees Pty Ltd, immediately prior to her dismissal;
· there was no evidence by which the Commission could find that the Award bound the Appellant's previous employer;
· all of the evidence indicates that the Award does not bind Kittochside Nominees Pty Ltd either by named respondency or by transmission;
· there is no uncertainty as to the identity of the parties to the Award;
· the Appellant should be bound by the conduct of her case at first instance, where no evidence was led:
- as to the identity of the vendor of the Northam Pharmacy;
- as to whether either the Appellant's former employer or the vendor of the Northam Pharmacy were bound by the Award which the Appellant asserts, binds the Respondent; or
- as to whether the Respondent was a successor, assignee or transmittee of the business;
· since the Respondent was not a party to the Award, a Federal award could not govern the terms and conditions of the Appellant's employment and therefore the Commission has no jurisdiction to deal with the application pursuant to paragraph 170CE(1)(a).
[13] Mr Howlett contradicted a submission of Mr McCorry to the effect that paragraph 149(1)(d) of the Act, requires only that the business or part of the business be transmitted or assigned by an employer who was a party to the industrial dispute, with no necessity for the transmittee, assignee or successor be an employer. Mr Howlett, contended that the transmittee or successor of the business or part of the business must be an employer for paragraph 149(1)(d) of the Act to operate. Kittochside Nominees Pty Ltd was not the successor or transmittee of the business of the Northam Pharmacy either from Maxwell Wood or from Matthew Reid. There is no evidence that Mr Reid transmitted all or part of the business to Kittochside Nominees Pty Ltd. There is no evidence that Kittochside Nominees Pty Ltd operates or operated the Northam Pharmacy. The Northam Pharmacy is a business name of a registered organisation conducted since July 1986 as a "Retail Pharmacy." The relevant Business Name Extract[6] discloses that the registered proprietor or person carrying on the business was Mr Wood from May 1991 till 11 September 1999; and Mr Reid from 12 September 1999. No corporation is disclosed in that record to have carried on the business.
[14] Finally, Mr Howlett submitted that the Appellant's case raised no matter of public interest sufficient to justify the granting of leave to appeal.
4. BACKGROUND TO THE MATTER AND THE DECISION SUBJECT TO APPEAL:
[15] The evidence before O'Connor C was predominantly in the form of sworn testimony from Ms Morgan and Mr Reid, both of whom were cross-examined. Evidential material included: the Award; a copy of the Respondent's Service Agreement; letters sent or delivered to Ms Morgan on 17 and 19 April 2001 on the letterhead of Northam Pharmacy signed by Mr Reid for Kittochside Nominees Pty Ltd; a copy of the complaint laid against Ms Morgan for stealing as the servant of Mathew Reid trading as Northam Pharmacy; a pay advice for Ms Morgan; a copy of PAYG Statement summary prepared by the Respondent about Ms Morgan for the year ending 30 June 2001; and correspondence from Ms Morgan's solicitors to her and to the Respondent in late April and early May 2001. The hearing before the Full Bench was conducted on the basis of that body of evidence, together with a business names extract for the Northam Pharmacy incorporated in Mr Howlett's submissions and a selection of extracts from the transcript and public records pertaining to the making of the Award and to the finding of the industrial dispute upon which it was grounded. In the following paragraphs, we summarise the main points from that body of material in a way that incorporates our own findings on several circumstances and points of detail.
[16] In December 1995, Ms Morgan commenced work as a pharmacy assistant at the Northam Pharmacy at Shop 17, Northam Boulevard, in Northam (the Pharmacy). At that time, Mr Mark Wood was the pharmacist operating and managing the business. At the hearing, before O'Connor C, the respondent put to Ms Morgan, and she accepted, that when she was working in the pharmacy under Mr Wood her employer was "Sandhurst Nominees", a company. It appears, and on what has been put to us we find, that Sandhurst Nominees Pty Ltd was the name of that corporation, which operated as a service provider similar to Kittochside. We also draw the inference from assertions in the transcript of proceedings before Dight C leading to the finding of dispute in matter C No. 60253 of 1995, that Mr Wood was a member of the Pharmacy Guild at the time the dispute was found and the Award was made.
[17] In about September 1999, Mr Matthew Reid acquired the Northam Pharmacy, and became the Pharmacist and Manager. The Service Agreement between Mr Reid trading as Northam Pharmacy and Kittochside was made on 2 August 1999, not long before Mr Reid commenced his operation of the Pharmacy. The Appellant continued to be engaged as a pharmacy assistant at the Pharmacy. She was aware that there had been a change in the identity of her employer and that a new contract of employment had been established; although Ms Morgan may not have been aware of the identity of the entity that formally employed her. However from the fact of her employment by Sandhurst Nominees; the existence and date of the Service Agreement, and Ms Morgan's employment by Kittochside, we draw the inference that Ms Morgan's employment relationship with Kittochside commenced on the transfer of the Pharmacy as a business from Mr Wood and his related company or companies to Mr Reid and his related company, companies or trusts. That relationship was effectively continuous with Ms Morgan's pre-existing employment in the Pharmacy. No material change of duties or conditions of employment occurred then or over the course of the continuing employment, apart from that affecting the identity of the employer. Ms Morgan's work was at all times under the effective direction and control of the Pharmacist.
[18] It is not in dispute that Kittochside was Ms Morgan's employer. We note that the payslip and employer taxation instalment payment summary tendered in evidence both refer to "Kittochside Nom Nthm ITF M Reid Fam T"[7]. Those references are explained in part by the content of the Service Agreement. Kittochside subscribed to that agreement as trustee for the Matthew Reid Family Trust. Mr Reid subscribed in his own name, trading as Northam Pharmacy.
[19] From 1 September 1999, in relation to the premises occupied by the Northam Pharmacy, Kittochside undertook to provide to Matthew Reid trading as Northam Pharmacy, for a fee of cost plus fifty per cent, the following services:
"Provision of staff shop assistant personnel as required by the business from time to time.
Assistance in general administration as may be required by the business.
Provision of Shop Fixtures, Fittings and Equipment."[8]
[20] In relation to the control and direction of employees engaged for the services stipulated, the Service Agreement provides:
"4.1 The company undertakes that its employees will during the currency of this agreement to the best of their skill and ability assist the business to carry out the purposes for which their services are required and will act under and in accordance with the lawful directions of the proprietor of the business.
4.2 The company reserves the right at any time or from time to time during the currency of this agreement to withdraw any one or more of the employees from service with the business and to substitute another employee or other employees equally skilled and experienced in his or their place.
4.3 For the avoidance of doubt, the company shall be solely responsible for all labour-related costs such as but not limited to employee's occupational superannuation, worker's compensation, holiday pay (including loadings) and sick leave entitlements[9]."
[21] Mr Reid is, and at all material times, was the sole Director of Kittochside[10]. The provisions of the Pharmacy Act 1964 effectively require that a company may only be engaged in the carrying on of the practice or business of a pharmaceutical chemist if it is under the immediate supervision of a pharmaceutical chemist[11].
[22] On 19 April 2001 the employment of the Appellant was terminated by notice in writing. The letter of termination states that the Appellant was terminated for serious misconduct namely breaching the cash handling policy of the Northam Pharmacy, and taking money from customers without putting it into the cash register. In that context, reference was also made to a breakdown in the employment relationship because Mr Reid would need to give evidence in related proceedings. Both letters addressed to Ms Morgan at that time were on letterhead headed:
The letter of termination was signed by Mr Reid for Kittochside Nominees Pty Ltd.
[23] Mr Reid subsequently gave evidence against the Appellant on a criminal charge of stealing as a servant. On 20 August 2001 the Appellant was acquitted of the charge. On 6 September 2001 she lodged an application against Mr Reid personally under section 170CE of the Act, alleging that her termination of employment was harsh, unjust and unreasonable. That application had been foreshadowed on 2 May 2001 by Ms Morgan's solicitor. To meet the objection made by Mr Reid to jurisdiction, the name of the respondent employer was later amended from Matthew Reid to Kittochside Nominees Pty Ltd. The application for relief was later amended to include also a claim for pay in lieu of notice under section 170CM of the Act.
[24] The Respondent's objection to the jurisdiction of the Commission was made on the basis that the Appellant was precluded from bringing proceedings under Subdivision B of Part 3 of Division VIA of the Act. The Respondent asserted that Ms Morgan was not a Federal award employee of a constitutional corporation as required by paragraph 170CB(1)(c) of the Act. It was not, and is not now, in dispute that the appellant was at the material time an employee of a constitutional corporation.
[25] O'Connor C upheld the jurisdictional objection on the basis that the evidence did not demonstrate that the Award bound Ms Morgan's employer. The substance of the Commissioners' reasons for that decision is adequately summarised in the following extracts:
"[21] All the evidence before me would indicate that the employer is the nominee company and the relevant award does not bind that company, either by named respondency or by transmission.
[23] s.170CB(1)(c) requires the applicant to be a federal award employee who was employed by a constitutional corporation. In this instance, a constitutional corporation employed Ms Morgan. However, s.170CD defines a federal award employee as an employee any of whose terms and conditions of employment are governed by an award, a certified agreement or an AWA.
[24] Since the respondent is not party to the award, then a federal award could not govern the terms and conditions of Ms Morgan's employment. Therefore, the Commission has no jurisdiction to deal with the application insofar as it deals with 170CE(1)(a), as to whether the termination was harsh, unjust or unreasonable.
[26] It is not in dispute that the relevant award upon which the principal issue in this appeal turns is the Retail and Wholesale Industry - Western Australian Community Pharmacy Retail Shop Distributive Allied Employees Association - Retail Pharmacy Guild of Australia Consent Award 1995 (the Award).
[27] Clause 8 of the Award relevantly provides that:
All the employers named on Schedule A of this Award;
Shop, Distributive and Allied Employees Association ("the union")"
[28] Schedule A of the Award so far as relevant reads:
... Northam Pharmacy, Shop 17, Northern Boulevard, Northam WA 6401"
All of the numerous respondents similarly listed are identified by reference to the trading name and address of the respective pharmacy. Schedule A appears to have been inadvertently omitted from the Award when first made, but was inserted with retrospective effect by an Order made on 3 February 1999[13].
[29] The Award is binding upon the Pharmacy Guild of Australia. We know that organisation to be a registered organisation of employers; we take judicial notice of its capacity and of the fact that in law it is required to be constituted in the main by employers in the industry for which it was registered[14]. The Rules of the Pharmacy Guild were not tendered in evidence in the proceeding before us. But we have no reason to doubt that eligibility to be a member, for the most part, would be confined to Pharmacists who are employers.
[30] Through the Guild, and the operation of paragraph 149(1)(f) of the Act, the Award also bound and is binding on members of the Guild. The Award also bound and is binding on "the employers named on Schedule A". The Award is expressed to apply throughout the State of Western Australia[15]. That provision may be read in conjunction with the Award Objectives[16], and with clause 22 and Appendix 1, as to wages and classifications. When so read, the Award may be construed, and we construe it to mean that the coverage of the Award extends to the employment, by employers bound by the Award, of Pharmacy Assistants in community pharmacies throughout the State of Western Australia.
(a) Where a business is before or after the date of this award, transmitted from one employer (in this subclause called "the transmittor") to another employer (in this subclause called "the transmittee") and an employee who at the time of such transmission was an employee of the transmittor in that business becomes an employee of the transmittee:
(i) The continuity of the employment of the employee shall be deemed not to have been broken by reason of such transmission;
(ii) The period of employment which the employee has had with the transmittor or any prior transmittor shall be deemed to be service of the employee with the transmittee.
(b) In this subclause "business" includes trade, process, business or occupation and includes part of any such business and "transmission" includes transfer, conveyance, assignment or succession whether by agreement or by operation of law and "transmitted" has a corresponding meaning."
[32] We note that clause 18.9 is among several provisions dealing with redundancy. It is framed on an assumption that the Award applies to a business. If Ms Morgan's employer was bound by the Award in September 1999, the provision in the Award as to continuity of employment and recognition of prior service would appear to have governed the movement of her employment within the Northam Pharmacy from the control of Mr Wood to the control of Mr Reid. In other words, at the time of the transmission, Ms Morgan would appear to have an accrued right under the Award in respect of the continuity of her employment from 1995 through the transition in 1999, and in respect of the recognition of her prior service. However, on the promise that her employer was bound by the Award, that right appears to be contingent upon Ms Morgan being, in law, an employee of the transmittor in that business or part of that business, and her becoming an employee of the transmittee of that business or part of that business.
[33] Finally in this context we note that neither Mr McCorry or Mr Howlett addressed in detail the terms of the Pharmacy Act 1964. As they are a relevant part of the factual matrix, we set out the following terms:
(1) In this Act unless the context requires otherwise --
`pharmaceutical chemist' means a person who is a pharmaceutical chemist registered under the provisions of this Act, or of an Act repealed by this Act, or of the Acts of which an Act repealed by this Act was a compilation;
`pharmacy', in relation to premises, means a shop or other premises, or the part of a shop or other premises, in which the business of a pharmaceutical chemist is, or is intended to be, carried on;
`the practice of a pharmaceutical chemist' means --
(a) the professional dispensing of medicines and drugs; and
(b) where appropriate, the sale of goods and the provision of services in association with the professional dispensing of medicines and drugs,
and the verb `to practise' has a corresponding meaning.
23. Restrictions on the carrying on of a pharmacy
(1) No person who is a pharmaceutical chemist shall carry on the practice of a pharmaceutical chemist, whether as principal or manager for a principal, and no company or friendly society, shall carry on the practice of a pharmaceutical chemist by and under the supervision of a person who is a pharmaceutical chemist, in any pharmacy unless that pharmacy is registered in accordance with the provisions of this section.
(2) The Council may upon the application of a pharmaceutical chemist, or of a company or friendly society referred to in subsection (1), register in his or its name any pharmacy in which the Council is satisfied that the pharmaceutical chemist practices or carries on, or intends to practise or carry on, business as a pharmaceutical chemist, either as principal or manager for a principal, or the company or friendly society carries on or intends to carry on the business of a chemist and druggist or of a pharmaceutical chemist, or the Council may refuse the application or may withhold registration of the pharmacy until the applicant complies with such conditions as may be prescribed.
36. Persons entitled to carry on business as chemists
(1) Subject to the provisions of subsection (2), no person other than --
(b) a company, or a friendly society, that is engaged in carrying on the practice of a pharmaceutical chemist by and under the immediate supervision of a licensed pharmaceutical chemist,
shall carry on the practice of a pharmaceutical chemist, or assume or use or exhibit any title, direction or sign, whether including any of the words, `pharmacy', `pharmaceutical', `drug store', `dispensary' or otherwise, that can be considered to mean that he is carrying on a practice or business of that kind.
(1) No pharmaceutical chemist, company or friendly society engaged in carrying on the practice of a pharmaceutical chemist in a pharmacy shall sell or otherwise trade in, supply or provide any goods or services, not being medicines or drugs, unless those goods or services are --
(a) goods or services of a kind which were sold, traded in, supplied or provided in a pharmacy in the State on the 1 July 1975; or
(b) goods or services approved by the Council from time to time as being goods or services that may be sold, traded in, supplied or provided by a pharmacy in association with the dispensing of medicines or drugs. ..."
5. PRINCIPLES APPLICABLE TO LEAVE TO APPEAL AND TO THE QUESTION TO BE DETERMINED ON APPEAL:
[34] The primary principles to be applied in relation to an appeal under paragraph 45(1)(b) are relatively clearly established. An appeal lies only with the leave of the Full Bench. In relation to an application for leave to appeal, a Full Bench will need to consider whether it is "seriously arguable" that the decision subject to review had actually been wrong on the point taken as the ground for an alleged error in the decisional process[17]. The error must be of a kind that causes the decision to be attended with sufficient doubt to warrant its being reconsidered. Subsection 45(2) supplies a distinct, and possibly mandatory, test for the Commission to apply when determining whether to grant leave to appeal in a particular case on the ground of importance in the public interest.
[35] Supplementing the requirements and provisions of section 45 of the Act, subsection 170JF(2) limits the grounds of appeal against orders made in relation to termination of employment. The provision reinforces the requirement that there be "error" as a precondition to the exercise of the powers to quash or vary the decision under appeal. It stipulates that:
"For the avoidance of doubt, an appeal to the Full Bench under section 45 in relation to an order made by the Commission under Subdivision B of Division 3 may be made only on the grounds that the Commission was in error in deciding to make the order."
[36] Applied to the circumstances of this case, subsection 170JF(2) requires that the appellant establish that O'Connor C was in error in deciding that Ms Morgan was not a federal award employee employed by a constitutional corporation. That decision was in substance a finding negating the existence of the jurisdictional fact required by paragraph 170CB(1)(c).
[37] In the consideration of whether or not to grant leave to appeal and in the determination of the appeal, the Full Bench must be guided by the observation of the Full Court in Pawel v Australian Industrial Relations Commission[18]:
"[12] Section 170CB(1) is intended to provide a secure constitutional base for the present s 170CE(1)(a) of the Act by limiting its sphere of operation. Section 170CB(1) reveals that s 170CE(1)(a) has not been enacted pursuant to the power of the Parliament to make laws with respect to external affairs (Constitution of the Commonwealth, s 51(xxix)) but pursuant to the powers of the Parliament to make laws with respect to the Commonwealth public service, the government of Territories, foreign corporations and trading or financial corporations formed within the limits of the Commonwealth, trade and commerce with other countries and among the States and matters incidental to the execution of any power vested by the Constitution in the Parliament or the Government of the Commonwealth: Constitution, ss 52(ii), 122, 51(xx), 51(i) and 51(xxxix) respectively.
[13] Plainly s 170CB(1) is intended to establish objective limits on the jurisdiction of the Commission under s 170CE(1)(a). Those limits are intended to confine the provision in a way which ensures its constitutional validity. The provision would not be so confined if the Commission were given the power to determine the ambit of the section by reference to its own opinion or satisfaction: ...
[14] Thus, although the Commission on an application under s 170CE(1)(a) must determine whether the applicant was an employee in one of the categories specified in s 170CB(1), the jurisdiction of the Commissioner under s 170CE(1)(a) is contingent on the fact that the applicant was such an employee, and not on the Commission's opinion or satisfaction in this regard. That is, to adopt the language of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 73 ALJR 746; 162 ALR 577 at [127], the determination of whether the applicant is an employee in one of the categories specified in s 170CB(1) is a determination not only of jurisdictional fact but a determination of "constitutional facts": see also R v Judges of Federal Court of Australia; Ex parte WA National Football League Inc [1979] HCA 6; (1979) 143 CLR 190 at 214-215. On an appeal to the Full Bench of the Commission with respect to a determination of a Commissioner as to whether an applicant was an employee in one of the categories specified in s 170CB(1), the Full Bench would be concerned with whether the Commission reached the right conclusion as to whether an applicant under s 170CE(1)(a) was such an employee. It would not be concerned simply with whether the decision of the Commissioner was reasonably open to him or her."
[38] Paragraph 170CB(1)(c) is in the following terms:
"(1) Subdivision B applies, in so far as it relates to an application to the Commission for relief in relation to the termination of employment of an employee on the ground that that termination was harsh, unjust or unreasonable, if the employee concerned was, before the termination:
(c) a Federal award employee who was employed by a constitutional corporation:..."
The expression `federal award employee' is defined in subsection 170CD(1) as follows:
"Federal award employee means an employee any of whose terms and conditions of employment are governed by an award, a certified agreement or an AWA."
[39] For an employee to be a `federal award employee' it is sufficient if any of the employee's terms and conditions of employment are governed by an award, a certified agreement or an AWA. Such a construction is clearly intended by the language used in subsection 170CD(1). It follows that an employee would be a `federal award employee' if his or her wages or any other condition of employment was governed by an award, certified agreement or an AWA[19].
[40] The jurisdictional fact that it was necessary for O'Connor C to determine required that he answer a mixed question of law and fact. One point follows from the character of that determination and the determination that is necessary on the appeal. Both Mr McCorry and Mr Howlett emphasised points about evidence and evidential burdens in the proceeding at first instance and the resultant decision. Certainly, evidence of the relevant circumstances must be adduced. We observe that for a matter of this kind, both parties might be thought to have been too sparing in supplying evidence or evidentiary material on points that may have been within their capacity to produce. None the less, a body of evidence and documentary material was produced. Thereupon, in our view, the primary question has become more a question of law than of fact. That is because the most important facts can be found from the evidence, albeit for some points inference from relatively dim sources of evidentiary illumination must be relied upon.
[41] The submissions put by the Appellant in the appeal must be assessed in perspective with the character of the decision subject to appeal as a refusal to find a jurisdictional fact. In an appeal of that kind a Full Bench will generally need to determine whether the Member at first instance reached the right conclusion. It is readily apparent that there is a seriously arguable case that the decision was made in jurisdictional error; we are also satisfied that, the question of jurisdiction raised by the appeal causes the matter of the appeal to be of such importance that it is in the public interest that leave to appeal is granted. Accordingly we grant leave to appeal.
[42] Ms Morgan was at the material time a federal award employee employed by a constitutional corporation if Kittochside, as her employer, was bound by the Award. Kittochside is not a named respondent to the Award; it was not, and could not have been a party to the industrial dispute in part settlement of which the Award was made[20].
[43] Mr Reid, the sole Director of Kittochside, is also the registered proprietor of the business, the Northam Pharmacy, in which name he trades. The Northam Pharmacy is a named respondent to the Award. As a trading business, it is therefore a party to the Award. It is accordingly bound by the Award in respect of any employment by Northam Pharmacy within the coverage of the Award. The Northam Pharmacy is also a named party to the dispute in C No. 60253 of 1995.
[44] Mr Reid is a registered Pharmacist. He is a member of the Pharmacy Guild. As a member of that organisation of employers, by force of paragraph 149(1)(f) of the Act, Mr Reid may be taken to be a person bound by the award in respect of employment within the coverage of the award by him, or by the business, that constitutes the business under the trading name nominally party to the Award. Under section 36 of the Pharmacy Act 1964, Mr Reid is the person that carries on the practice of a pharmaceutical chemist in the business of the Pharmacy. However, the provisions of that Act may be construed to mean that Kittochside itself was a company engaged in carrying on that practice under the direct supervision of Mr Reid as a pharmaceutical chemist[21]. That circumstance, a consequence of the Western Australian statute, is an element in the conclusion we state at paragraph 61 below.
[45] That consideration apart, the question of whether Kittochside is less directly a person bound by the Award effectively turns upon the operation of section 149(1). It reads:
"(1) Subject to any order of the Commission, an award determining an industrial dispute is binding on:
(a) all parties to the industrial dispute who appeared or were represented before the Commission;
(b) all parties to the industrial dispute who were summoned or notified (either personally or as prescribed) to appear as parties to the industrial dispute (whether or not they appeared);
(c) all parties who, having been notified (either personally or as prescribed) of the industrial dispute and of the fact that they were alleged to be parties to the industrial dispute, did not, within the time prescribed, satisfy the Commission that they were not parties to the industrial dispute;
(d) 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, including a corporation that has acquired or taken over the business or part of the business of the employer;
(e) all organisations and persons on whom the award is binding as a common rule; and
(f) all members of organisations bound by the award." (Emphasis supplied.)
[46] Paragraph 149(1)(d) is known as the transmission of business provision of the Act. It is central to the determination of this matter. However, the preceding paragraphs of subsection 149(1) are also critical. Those paragraphs assist in the identification which parties to the dispute or to proceedings, are bound by the Award. For paragraph 149(1)(d) to operate on a transmission of business, the transmittor must be an employer who was party to the industrial dispute. It is not sufficient that the transmittor was merely a party to the Award or a person bound by the relevant award. That much appears from paragraph 149(1)(d) itself and from authority on a similar point about the operation of a transmission provision in the Industrial Relations Act 1988[22] (the former Act). It may be important to bear in mind when considering the several sources of a judicial analysis that, in the words emphasised, paragraph 149(1)(d) differs materially from both section 61 of the former Act, and section 170MB of the Act. Each of the latter provisions includes reference to a party or employer respectively bound by an award or agreement. Neither provision is subject to any order by the Commission, as is the case now with section 149.
[47] Paragraph 149(1)(d) and the transmission of business principles have been the subject in recent years of much litigation. Much of the resultant body of principle is of peripheral relevance to the issues in this matter. That is because, for the most part, the recent cases have been concerned with issues about whether or not there is sufficiently substantial an identity between the business of the transmittor and the business received by the transmittee for paragraph 149(1)(d) or its counterpart, section 170MB, to operate[23].
[48] In this matter, it is beyond doubt that the business comprised by and trading as Northam Pharmacy was transmitted. There is no issue about the identity between that business as an entirety transferred as a going concern from Mr Wood as registered proprietor to Mr Reid, and the business received by the latter. It is less certain, indeed it is unclear, what subdivision into parts of that business may have existed before and after that primary transmission. None the less, the business of the Pharmacy in aggregate including staff, shop premises and associated fittings and fixtures, passed lock, stock and barrel in September 1999 from the control of Mr Wood and his related entities to the control of Mr Reid and his related entities.
[49] Against that background, with one exception, we do not consider it necessary to draw in any detail upon the principles that are being worked through the decisions of the Federal Court since the High Court decision in PP Consultants.. The exception concerns a point that has been consistently reiterated in several recent decisions[24]. We confine our reference to the statement of it in the majority judgment in the Employment National Case[25]:
"166 It was contended on behalf of the Minister that a succession, assignment or transmission contemplated by s 149 requires some legal nexus between the first, or original, employer and the presumptive transmittee. Reference was made to the observations of the New South Wales Industrial Commission in Bransgrove v Ward and Syred (1931) AR 272 at 277:
`To constitute successorship, there must be some definite legal nexus or privity between a respondent to the Federal award who is the predecessor and a successor who then, by virtue of the Commonwealth statute, becomes bound by the Award. The existence of that nexus or privity must be evidenced either by direct proof of a transaction or by facts from which the conclusion may be drawn of some transference of right to the business from the predecessor to the successor.'
167 That proposition seems to have been qualified to an extent by the observation in par 14 of the joint judgment in PP Consultants that;
`The question whether one person has taken over or succeeded to the business or part of the business of another is a mixed question of fact and law. ......... it is not possible to formulate any general test to ascertain whether, for the purposes of s 149(1)(d) of the Act, one employer has succeeded to the business or part of the business of another.'
168 That qualification, we believe, precludes us from confining succession, transmission or assignment to accepted legal categories like sale, assignment, bequest or statutory vesting and from limiting the statutory concepts by reference to traditional notions like privity, developed in the law of contract or real or personal property. That was the view taken by R D Nicholson J (with whom Spender and Madgwick JJ agreed) in North Western where his Honour said, at [64] and [68]:
`I also do not agree that the primary judge fell into error because he looked at what was occurring before contracting out and contrasted it with what was occurring after contracting out without examining the nature of the nexus between the two stages. Once it is accepted that the reference to "the business" in s 149(1)(d) has the wide reference which the primary judge found, it is not necessary to search for some legal form of succession, assignment, transfer, corporate acquisition or takeover. What is necessary is to determine as a question of fact whether "the business" understood in the wide sense so found has been transmitted to other hands. That does not require a search for some legal mechanism as a nexus between the pre and post transmission stage.
The findings established that the same patients become the responsibility of the networks; the medical records and stock were transferred; leased assets were assigned; and staff were transferred. While the State retained control over funding and audit that was but the consequence of it having transferred the responsibility for the provision of the relevant mental health services so that it was now required to pay for the delivery of such services. What was involved was a transmission of the core of the relevant services not, as in Crosilla or Kelman v Care Contract Services (1995) ICR 260, a peripheral activity.'
169 The issue of succession, transmission or assignment, as distinct from the issue concerning "part of a business" received little express attention in PP Consultants_. However, it is apparent from the primacy accorded (at par 15) to the "before and after" comparison and from the use of the lay terms "taken over" (at par 14) and "disposed of" (at par 19) in considering whether anything had passed from the first employer, that the joint judgment implies an aversion from any narrow or technical reading of the phrase "successor, assignee or transmittee". Neither did Callinan J appear attracted to a technical approach: see pars 29, 39 - 43._
170 At one end of the spectrum of circumstances to which ss 149(1) and 170MB can arguably apply is the case where the former employer who was a party to the industrial dispute, simply vacates the field of, or ceases to participate in, the activities to which that dispute related. The mere fact that one or more new employers adventitiously enter the area or begin to engage in the same or substantially similar activities would not, it seems reasonably clear, constitute the new employers as successors, assignees or transmittees of the former employer. What is required is some conduct or connection touching employment in the relevant activity from which can be imputed a sufficient relationship between the former employer and the new employer or employers."[26] (Emphasis supplied.)
[50] We note that the dissent of Beaumont J in that case turned upon the operation of a specific transmission provision in section 81C of the Public Service Act. His Honour paraphrased the principle crystallised in PP Consultants and applied it as follows:
"134 It appears that there is no High court decision squarely on the present point, given especially the invocation here of the operation of s 81C. However, the following propositions may, relevantly, be derived from the course of High Court authority (upon the footing that what was decided in North Western must now be read in the light of the observations made in PP Consultants_):_
`[O]nce [the rights of employees have] accrued, the employer, regarding [it] in [its] capacity of owner of a particular business, can[not] rid that business of those accrued rights by transferring it, or ... rid [itself] of the obligations towards the class of employees by engaging in another house of business of precisely the same nature'. (George Hudson, above, per Isaacs J at 438).
* In my opinion, these observations could not be applied in the present case. For one thing, there was not created here `another [private sector] house of business of precisely the same nature'. On any view, these were public sector arrangements and, although EN and ENA are both Commonwealth authorities, and although there are some similarities in function present, the `house of business' was not `of precisely the same nature' (emphasis added)."[27]
[51] It may be observed that Northam Pharmacy under the ownership of Mr Reid is another private sector house of business of precisely the same nature as that which was owned by Mr Wood. It would appear to be consistent with the reasoning in several cases not apparently disapproved of by his Honour, that in such circumstances, the Court should be slow to permit a device of subcontracting to avoid the application of paragraph 149(1)(d)[28].
[52] The reasoning from both judgments touches also upon the issue of principle raised by Mr Howlett: must the transmittee of a business be an employer before there is a transmission. We think the answer is that it is the award obligation of an employer that attaches to a transmission of business. That duty is devoid of content if there is not actually or prospectively an employer of employees within the application of the Award in the business or part of the business. However, once there is a new employer in the business or part of the business transmitted, sufficient nexus to establish the transmission can be imputed from conduct or connection touching employment in the relevant activity. We consider that to have been established in respect of the Respondent in this instance.
[53] For the purpose of applying section 149 to the Award, and to the circumstances of this case, the identity of a party or a person within one or other of paragraphs 149(1)(a), (b), (c), (d) or (f) needed to be clarified. For that reason it became necessary for the Full Bench to draw to attention, and seek comment by Mr. McCorry and Mr. Howlett about the detail of the Commission's file recording the relevant parties to the dispute and award making process.
[54] From the transcript and material on the file record it appears, and so far as relevant we find, that the parties to the industrial dispute who appeared, or were represented before the Commission were the SDAEA, the Pharmacy Guild, and the members of the Pharmacy Guild being the respondents listed by business names in Schedule A to the Award, and in similar form in the schedule attached to the dispute notification dated 7 June 1995. Those respondents include the Northam Pharmacy. All the respondents stated in Schedule A were represented at the hearing before Dight C. The union representative declared that "only members of the Guild were served with the letter of demand[29]". It follows that for purposes of paragraph 149(1)(a), Northam Pharmacy is a party to the dispute who was represented before the Commission, and who was, by order of the Commission, bound by the Award.
[55] Having regard to the finding made in the preceding paragraph, it is not necessary to consider whether the Northam Pharmacy, or its then registered proprietor was also a `party' of the kind described in paragraph 149(1)(b) or (c). Those paragraphs do not appear to be relevant to the determination of this matter.
[56] Northam Pharmacy was logged as a member of the Guild. Its inclusion in the finding of dispute was uncontested. So was its inclusion as a named respondent to the Award. We draw the inference that Mr Wood, as the registered proprietor of the Pharmacy since May 1991, was a member of the Guild.
[57] We note in that context that the finding of the dispute, and the making of the Award, largely by consent but partly by determination of the Commission, was no mere formality. The content of the dispute finding was subject to jurisdictional challenge[30]. After protracted negotiations, the Award, made by consent, displaced a pre-existing common rule State award. Changed conditions and flexibilities were introduced by the Award and acknowledged by the Commission and representatives of the parties to be of significant practical and operational significance[31].
[58] The finding of dispute, as was the Award, was made in terms that identified the Northam Pharmacy and other respondent employer parties by reference to its business name. We are not persuaded that the nomination of a business by which to describe an employer or employers as a party to a dispute or as a respondent to an award is ineffective.
[59] Smith C referred to them in CEPU v A and J Plumbing Service[32]. There are several cases in which the competence of a collective description of an award or dispute respondent was accepted although the descriptor did not identify individual legal entities:
"In Australian Commonwealth Shipping Board v. Federated Seaman's Union of Australasia and Others [(1925) [1925] HCA 3; 35 CLR 462 ] the issue of the correct name of the employer viz a viz the party named in the award was a matter subject to argument. The Court held that the award sufficiently described the employer so as to bind the employer. Higgins J observed:
`Indeed, I do not see why he could not make the award apply to a person under a nickname, subject to the risk of a mistake.' [p.482]
In Devane v. Gati and Another [(1956) [1956] HCA 46; 95 CLR 174 at 175] the Court decided:
`It was quite competent for the Court of Conciliation and Arbitration to deal in the firm name with a partnership carrying on business in the firm name. The partners of the firm against which proceedings in the Court of Conciliation and Arbitration were so carried on would be bound by an order or award made naming the firm, that is assuming that in all other respects the court had jurisdiction to bind them by order or award. It is, of course, true that a partnership is not a separate legal entity. But the firm name is nevertheless a description of the individuals who compose the partnership and it describes them for the purpose of the firm's business.'
A contrary view was taken in Perks v. Regatta Carlton Hotels Pty Ltd [1974 AILR 320] where the a Full Bench of the Australian Industrial Court unanimously dismissed summonses for penalties against an employer for alleged breaches of an award because it was necessary to refer to the legal entity and a reference to business premises did not satisfy this requirement.
Cohen J in RANF v. Private Hospitals & Nursing Homes [(1984) 11 IR 220] dealt with an argument about the proper identification of the employer:
`As to the decision in Perks v. Regatta Carlton Hotel Pty Ltd and the problems which may arise if the respondents to an award are not legal entities, the Commission's attention was directed by counsel for the RANF to the judgement of the High Court in Devane v. Gati [1956] HCA 46; (1956) 95 CLR 174. Here the common law rule which requires respondents to proceedings to be legal entities, and that there is no such requirement in relation to respondency to awards. There may be problems enforcing such awards but the identity of the employer would no doubt be revealed in the process.' [p.232]
In 1990 Gray J in Clothing & Allied Trades Union of Australia v. J & J Saggio Clothing Manufacturers Pty Ltd [(1990) 34 IR 26 at 28] (observed):
It is well established that, provided that the intention of a maker of an award is clear as to the entity which is to be bound, failure to use the precise name of that entity is not fatal. In Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia [1925] HCA 3; (1925) 35 CLR 462, the expression `Commonwealth Government Line of Steamers' in an award was held to be sufficient to bind a statutory body named 'Australian Commonwealth Shipping Board'. In Nicol v. Parr (1985) 11 IR 141, the inclusion of the name of a natural person in a column intended for names of respondent employers, with the name of a company in the column intended for addresses, was held to be sufficient to bind the company."[33]
[60] In the first of the High Court decisions cited by Smith C, both Isaacs and Higgins JJ gave weight to the conduct and attributed intent of the parties to disputes in treating "the designation in each case as representing the owners ... whoever the owners might be[34]". In that context Isaacs J held the general description to be sufficient to recognise an owner-employer's legal entity, which was therefore a party to the relevant award. He reiterated an earlier adoption by him of a statement of Halsbury LJ to the effect that it:
"... is a very apt and cogent illustration of a very familiar principle of law, that where you are dealing with a grantee, you may describe that grantee in any way which is capable of ascertainment afterwards: you are not bound to give .. a particular name; ... you may describe him by any description by which the parties to the instrument think it right to describe him."[35]
[61] To those authorities may be added the weight of the views of the members of the Court in R v Alley to the effect that precision in the specification of the parties to a dispute is not of the essence, provided the employer entity or entities are ascertainable[36].
[62] It is apparent that for purposes of making the Award, and the antecedent finding of dispute, the parties thought it right to describe the employer parties to the dispute, and to the Award, by an embracing and continuing collective description of the business. That description was directed to cover whoever was the employer of Pharmacy Assistants, eligible for membership of the Shop, Distributive and Allied Employees Association (the SDAEA), and engaged as employees by the person or persons who carried out the business and were employers. The provisions we have extracted from the Pharmacy Act 1964 reinforce that conclusion.
[63] It follows in our view that the Award now and still binds that business as it is now owned and carried out by whoever the employer is, independent of any effect of succession. In other words, the order of the Commission, and the Award itself, is binding upon the business as such whoever may be the employer. The business, as originally described generically but specifically, is the continuous but substantially same respondent to be bound by the Award. That business includes the part of the business engaged in by Kittochside as employer and provider of services. Kittochside is therefore an employer bound by the Award. However, lest we be wrong in that conclusion, we shall continue our consideration of the application of paragraphs 149(1)(a) and (d) to the circumstances.
[64] The business of the Northam Pharmacy was carried out under the registered proprietorship of Mr Wood[37]. It seems that Mr Wood may have enlisted for that purpose a service company, Sandhurst Nominees, as Trustee for his Family Trust. Whether he did or not is scarcely material. Mr Wood, or if Mr Reid be correct, Mr Wood and Sandhurst Nominees[38], transmitted the business comprised by the Northam Pharmacy to Mr Reid, or perhaps to Mr Reid in conjunction with Kittochside.
[65] The Service Agreement between Kittochside and Mr Reid trading as Northam Pharmacy establishes that Kittochside is a participant in the business that comprises Northam Pharmacy. From a date immediately preceding Mr Reid's acquisition of the Pharmacy, Kittochside undertook to supply staff, shop fittings, fixtures and equipment, for a cost plus fee. The oral evidence shows that Kittochside supplied at least each member of staff initially employed in the Pharmacy under Mr Reid's ownership. It may reasonably be inferred that Kittochside discharged its obligation to supply the fixtures, fittings and services it undertook to supply. It may reasonably be inferred also that Kittochside could only have acquired such fittings and fixtures from Mr Wood, or from Mr Wood and Sandhurst Nominees. There was no evidence to the contrary. It was singularly within the capacity of Kittochside and Mr Reid to adduce evidence that may have assisted any case that might have been made adverse to such inferences based upon the Service Agreement. We draw those inferences about the acquisition of the fittings, fixtures and services.
[66] Kittochside's participation in the business of Northam Pharmacy is manifest also from another consideration. That consideration is the role that Mr Reid performs in his dual capacity as sole Director of Kittochside and registered proprietor of the Pharmacy as a business under the Service Agreement; in practice that covers the direction and control of Pharmacy Assistants. To paraphrase the terms of the Pharmacy Act 1964, that role amounts to the supervision of Kittochside's provision of services in association with the professional dispensing of medicines and drugs.
[67] In our view of the circumstances established in evidence, Kittochside was at all material times, part and parcel of carrying on of the business operating as the Northam Pharmacy, the engagement in the trading and other services associated with the practice of a pharmaceutical chemist in a pharmacy. Mr Reid's interlocking role in the business and the service company provides sufficient foundation for a conclusion to that effect in the circumstances of this case[39]. The definitions extracted from the Pharmacy Act 1964 of "pharmacy", and "the practice of a pharmaceutical chemist", read in conjunction with sections 23, 36 and 40A, compound that foundation. Kittochside is accordingly, with Mr Reid, a transmittee from Mr Wood and his associated company of part of the business of the Pharmacy.
[68] A corollary of that conclusion is that Mr Reid and Kittochside were at all material times effectively joint venturers in carrying on the business and practice of the Northam Pharmacy. We note the decision in Re Theatre Managers Award. In that case, Dunphy J held that a "joint adventurer" sharing in the business of a person bound by an award becomes bound by an award, as though by transmission of the business. Thus:
"The agreement (Exhibit `B') indicates a joint arrangement as does the document (Exhibit `A') where in the three constituent parties of the Licensee body agree that the benefit and the benefit and the burden of the agreement (Exhibit `B') shall be shared equally. In view of the paramountcy of the Federal award it is difficult to visualise a situation in which one joint employer is bound by a Federal award and his partner or partners are bound by a State award with respect to the employment of the same employees.
The Federal award becomes binding on Carroll not by virtue of any inherent sanction but by virtue of the express terms of section 50 of the Commonwealth Conciliation and Arbitration Act 1904-1952. If the contentions of the Association are correct any employer can escape his award responsibilities by the sample process of joining up with a stranger to the award whilst still remaining in the industry. Such a result would react detrimentally to unions and associations generally in the long run, although at the moment the result might happen to suit the Theatre Managers Association.
It seems to me that the provisions of section 50 paragraph (d) of the Act are wide enough to apply to this particular matter and that the Licensee becomes bound by the Federal award as `an assignee or transmittee of the business of a party bound by the award'. It was admitted that a true partnership would have this result but whether or not such a legal relationship exists herein, there is an assignment or transmission of Carroll's business to his joint adventurers. Once a person becomes bound by an award and continues to remain in the industry any sharing of his business with a stranger to the award carries with it the award coverage."[40] (Emphasis supplied.)
[69] In a practical sense, the Service Agreement evidences a joint venture. That expression is not a term of art. According to a legal dictionary, it describes:
"An association of persons for particular trading, commercial, mining, or other financial undertakings or endeavours with a view to mutual profit. Each participant usually, but not necessarily, contributes money, property or skill. It is not a technical legal term with a settled common law meaning: United Dominions Corp Ltd v Brain Pty Ltd [1985] HCA 49; (1985) 157 CLR 1; 60 ALR 741. ... A joint venture may be carried out by way of a partnership, company, trust, agency, joint ownership, or other arrangement. It may include an activity carried on by a body corporate which was formed to carry on the activity by means of joint control or ownership of shares in the body corporate: (CTH) Trade Practices Act 1974 s 4J(a)."[41]
[70] The circumstances of this case disclose that the Service Agreement is between the natural person who is the operator of the Pharmacy as a business, and the Respondent, a service company of which the operator is the sole Director. A service company has been defined generally as:
"A company or trust established to provide administration services to other companies in its group or to a professional partnership such as a partnership of accountants or lawyers or doctors. The service entity charges the group companies or partnership a fee based on cost plus a profit margin, which is a legal form of income splitting: Federal Cmr of Taxation v Phillips (1978) 78 ATC 4169. If the entity is a trust, the profit of the entity is distributed to other entities associated with the partners such as to family trusts and distributed in turn to the partner's family members. If the entity is a company, the profit may be accumulated in that company and taxed at the corporate tax rate. Also known as `service trust'."[42]
[71] We consider that definition to be a relatively accurate description of Kittochside's function in relation to the business operations of the Pharmacy, and the beneficial proprietor Mr Reid. In the circumstances, there is a substantial linkage and overlap in the control, purpose and a substantial operation of the respondent, Mr Reid, and the Pharmacy as the business that is the named party to the Award. That degree of connection between the respondent and the nominal respondent to the Award is sufficient to establish that Kittochside is an ascertained joint venturer in the Northam Pharmacy, and is accordingly bound by the Award under section 149 as an assignee or transmittee of part of that business. In the circumstances, it is immaterial whether the assignment or transmission was from Mr Wood trading as the Pharmacy, or from Mr Reid trading as the Pharmacy.
[72] There is an alternative but more novel path of reasoning to a similar conclusion. Our directions of 6 February 2002, requiring written submissions, drew the parties' attention to an aspect of the issue to be determined. We canvassed our view about questions of jurisdiction raised by the appeal. The construction of section 170CB was one such question. Another was the construction and application of the notion of "employee" in circumstances involving joint engagement by a labour service provider and a client contractor exercising control over work performed. We took that step so that the parties in their submissions might have the opportunity to canvass issues about whether the employment of Ms Morgan in the circumstances of the case could be considered to be a joint employment by Kittochside and Mr Reid trading as Northam Pharmacy. That invitation attracted no substantive response.
[73] So far as we are aware, the notion of joint employment has thus far not been the subject of rulings or dicta by any Australian court. The compatibility of the notion with the common law concept of employment based on the master servant relationship is therefore moot.
[74] The doctrine of joint employment, or of joint employers, is well established in labour law in the United States. It appears to have been a response to the use of labour hire arrangements by employers in circumstances that conduced to an avoidance of labour regulation and employee protections:
"Before assessing liability for violations of the NLRA (National Labour Relations Act) in temporary employment relationships, the NLRB will seek to determine whether the temporary service provider and client employer are "joint employers' under the Act. Applying the standard enunciated by the Supreme Court in Boire v. Greyhound Corp.[1964] USSC 49; , 376 U.S. 473 (1964), the question of `joint employer' status is a factual issue and requires examination into whether the employer that is alleged to be a joint employer (the client employer) possesses sufficient control over the work of the employees at issue to qualify as a joint employer with the actual employer (the temporary service provider). Under this standard:
_[W]here two or more employers exert significant control over the same employees - where from the evidence it can be shown that they share or co-determine those matters governing essential terms and conditions of employment - they constitute `joint employers' within the meaning of the NLRA. [_NLBR v. Browning-Ferris Indus.[1982] USCA3 1083; , 691 F. 2d 1117 (wd Cir. 1982); see also, TIJ, Inc., 271 NLRB 798 (1984).
At the outset, it should be noted that `joint employers' are businesses that are entirely separate legal entities, although both `take part in determining essential terms and conditions of employment of the group of employees [See Capitol EMI Music, _311 NLRB 997 (1993). In that case the National Labour Relations Board held the temporary service provider and client employer to be joint employers because they shared and codetermined the essential terms and conditions of employment of temporary employees. The temporary employment agency negotiated the wage rates of its temporary employees assigned to Capitol, while Capitol's supervisors assigned all work and supervised the temporary employees, effectively disciplined the temporary employees, and made effective recommendations concerning the firing and discharge of the temporary employees]. Thus, joint employer relationships are found where, despite the absence of common ownership, one entity effectively and actively participates in the control of labor relations and working conditions for employees of the other entity [_Goodyear Tire & Rubber Co., 312 NLRB 674 (1993)].
The Board has defined `essential terms and conditions of employment' as those involving such matters as hiring, firing, discipline, supervision, and direction of employees [Ibid Goodyear Tire _at 676]. Moreover, the presence of an operational control clause in a temporary services agreement - that is, a clause that gives one employer the sole and exclusive right to direct the temporary employees - is not, in and of itself, conclusive evidence of joint employer status [Ibid]. Rather, to establish joint employer status, there must be a showing that the employer meaningfully affects essential terms and conditions of employment of the temporary employees' employment, and that its involvement is more than minimal or routine [_LAERCO transportation 269 NLRB (1984)]."[43]
[75] It is not necessary for us to further explore the compatibility of a joint employer principle with, or its applicability to, the employment relationship that exists between Ms Morgan, Kittochside and Mr Reid trading as Northam Pharmacy. Were it necessary to do so, we would incline to the view that no substantial barrier should exist to accepting that a joint employment relationship might be found and given effect for certain purposes under the Act.
[76] From the circumstances of this case it is manifest that through Mr Reid, Kittochside and the Northam Pharmacy exercised in effect a co-determinative control over the work and the conditions of employment of Ms Morgan. The decisions in WPS Wire and Bellechic illustrate that the common law is sufficiently flexible to accommodate a Court finding that the employing entity may be identified with the person who effectively exercises control over the work[44]. The decision of the High Court in Hollis v VABU[45] is another step toward an analysis consistent with an indicium for a contract of service_,_ control and direction of work, being accorded dominance and applied to prevent regulatory protections of employees being avoided. Article 2.3 of the Convention Concerning Termination at the Initiative of the Employer might also be read as an encouragement to the Court or the Commission to construe provisions of the Act in a way consistent with minimising the avoidance of such protections.
[77] The parties in this matter did not put any submissions about the possibility that Kittochside and Mr Reid trading as Northam Pharmacy might each jointly be employers of Ms Morgan. Only exotic forms of reasoning exist to support the further examination of that possibility. Should the conclusions we have set out in paragraphs 63, 67 and 71 above not be sufficient to dispose of the question of jurisdictional fact raised in this matter, there may be scope for the parties to explore the possible application of the doctrine to the circumstances raised by this case.
[78] For the reasons leading to the conclusions we have set out in paragraphs 63, 67 and 71, we find that Ms Morgan is a federal award employee of the Respondent which is a constitutional corporation.
[79] Accordingly we are satisfied that in the decision subject to appeal, O'Connor C was in error when he refused to make a finding to that effect. Our determination is that the appeal should be allowed. We dismiss the Respondent's objection to jurisdiction.
[80] We direct that Ms Morgan's application be referred to Williams SDP for allocation for conciliation and further process in accordance with the Act.
D. Howlett, of Counsel, for Kittochside Nominees Pty Ltd.
Printed by authority of the Commonwealth Government Printer
2 Exhibit H1 sets out the Service Agreement in full.
3 For ease of further reference we have marked submissions as follows:
Appellant's submission in response to Respondent's submissions: Exhibit MA3.
Respondent's reply to Directions dated 22 April 2002: Exhibit HA2.
5 Re Theatre Managers Award (1953) 77 CAR 291 at page 295.
8 Exhibit H1, recitals, clauses 1, 2, 3 Schedules 1, 2 and 3.
11 Pharmacy Act 1964 (Western Australia), section 36.
14 ORG No. 175V; sections 62 and 206 of the Act require a registry of organisations. Subsection 188(1)(a) requires that an organisation of employers shall be comprised of members, some or all of whom are employers.
17 Pontil Drilling v Gibson, 13 June 2001, Print PR905135.
18 [1999] FCA 1660; (1999) 97 IR 392 at page 394-395 per Branson and Marshall JJ; (1999) 94 FCR 231; [1999] FCA 1660.
19 Dazmany Pty Ltd t/as Sails Resort v Thorn (1997) Print N9860 per Ross VP, Harrison SDP and Cargill C at page 4 of 7.
21 The definitions in section 5 of the Pharmacy Act 1964 read in conjunction with sections 23, 36 and 40A.
22 Fruehauf Trailers Pty Ltd v Vehicle Employers Federation 1989 Print H6795 at 4-5, per Peterson J and Johnson C; at 7 per Coldham J. That case was applying section 61 of the former Act. It was in different terms, to the current provision. As to the use of that section to identify the parties to a dispute, see also R v Alloy [1981] HCA 61; (1981) 153 CLR 376, 383-384, 389, 399-400 which appears not to have been considered in Fruehauf.
23 PP Consultants Pty Ltd v Finance Section Union [2000] 176 ALR 205; a useful summary of relevant antecedent case law is given by Mansfield J in Australian Rail, Tram and Bus Industry Union v Torrens Transit Service [2000] FCA 1683; (2000) 105 FCR 88 and by Beaumont J in the Employment National Case: see below.
24 North Western Health Care Network v Health Service Union of Australia [1999] FCA 897; (1999) 52 FLR 477; (1999) 164 ALR 147 at 154, 162; ARTBIU v Torrens Transit Services ibid 105 FLR at 100 paragraph 54.
25 Minister of State for Employment Workplace Relations and Smith Business v CPSU (2001) FCA 316.
26 Ibid Employment National Case at paragraphs 166-170 per Ryan and Madgwick JJ.
27 Ibid Employment National Case at paragraph 134 per Beaumont J.
28 Ibid Employment National Case at paragraph 87.
30 Finding of dispute, Dight C, Print M4581 applying decision of Full Bench in Lamsoon Print M2419.
31 Making of Award: C No. 60253 of 1995: decision in transcript of Dight C, 25 October 1995, transcript p. 32 lines 35 to 40:
"... that this is a radical award, I think is correct in relation to the inter-relationship of hours and income. I think it is radical in some other respects which were alluded to by the parties as well, including the heightened capacity and the flexibilities given to the employers so that they can be better prepared to meet the challenge of an increasingly competitive market. In that regard, I can do nothing but commend the parties for using intelligence and goodwill to achieve an outcome which is clearly going to be of considerable benefit both to the employees and to the employers."
34 Ibid (1925) 35 CLR462 at 467 per Isaacs J; at 482 per Higgins J.
35 Simmons v Woodward (1892) AC 100 at 105 cited by Isaacs J: Commonwealth v Melbourne Harbour Trust Commission [1922] HCA 31; (1922) 31 CLR 1 at 17.
36 Ibid R v Alley [1981] HCA 61; 153 CLR 376 especially at 395; and 398-399.
39 We note in this respect analogous findings on the facts of first instance cases in Australian Insurance Employees Union v WP Insurances Pty Ltd [1982] 1 IR 212 at 216-217 per Evatt J, concluded that an employee of a service company was employed by another company respondent to a relevant award; in Textile, Footwear and Clothing Union of Australia v Bellechic Pty Ltd [1998] per Ryan J (unreported) 19 November 1998 approved that decision as part of an analysis identifying which of several companies was the relevant employer bound by an award.
40 Re Interpretation: Theatre Managers Award (1953) 77 CAR 291 at 294-295.
41 Negh and Butt: Butterworths Australian Legal Dictionary 1997 at 645.
42 Ibid Butterworths Australian Legal Dictionary at 1069.
43 Kenneth A. Jenero and Mark A. Spognardi: "Temporary Employment Relationships: Review of the Joint Employer Doctrine under the NLRA", Employee Relations L.J./Vol. 21, No. 2/Autumn 1995: 127 at 128-129.
44 Moore J in Finance Sector Union v Commonwealth Bank [2001] FCA 1613 also cited Bellechic with approval. He also observed that issues about who is the employer of an employee when there might be two (or more) possible employers can arise in various legal contexts:
"61 In many of the recent Australian cases in which this issue has arisen, the Court has adopted the approach of determining which of two possible employers is the employer by applying the principles developed for determining whether a person was an employer at all. ..."
Wendy Jane Morgan re Wendy Jane Morgan
Kittochside Nominees Pty Ltd - PR918793 [2002] AIRC 651;
(1999) 73 ALJR 746
(1979) 143 CLR 190
(1984) 11 IR 220
(1990) 34 IR 26
(1925) 35 CLR 462
(1985) 11 IR 141
(1985) 157 CLR 1
(1999) 97 IR 392
(1999) 94 FCR 231
(2000) 105 FCR 88
(1999) 164 ALR 147
(1922) 31 CLR 1
(1956) 95 CLR 174
(1981) 153 CLR 376
(1999) 52 FLR 477
Appeal allowed. The respondent's jurisdictional objection was dismissed. Ms Morgan's application was referred to Williams SDP for allocation for conciliation and further process under the Act ([79]–[80]).