This case pertained to a jurisdictional challenge by Visy Paper Pty Ltd trading as Visy Recycling (‘Visy Recycling’) in regards to a claim brought by Dale Beazley under s 394 of the Fair Work Act 2009 for an unfair dismissal.

Beazley argued that Visy Recycling was the relevant employer against whom this claim should be brought.

 

Background

Ranstad Pty Ltd (‘Ranstad’) was a labour hire company which was engaged by Visy Recycling.

Ranstad advised the Tribunal that they were the ones who had employed Beazley, not Visy Recycling, and in doing so provided the Tribunal with documentation including a copy of the contract of employment between themselves and Beazley. This documentation (all containing Ranstad letterheads) was also sent to Beazley with the following:

• A document headed ‘Contract of service terms and conditions – AUS’
• A candidate registration consent form
• An information statement for work seekers
• A Medical questionnaire
• OH&S Temporary Employee Induction DVD assessment – Blue Collar

All of the aforementioned documents were signed by Beazley.

• Beazley conceded to the Tribunal that he had signed this documentation.

Beazley advised the FWA that he had received the documentation but decided that he would like to proceed against Visy Recycling as he believed he had served the requisite 6 months with them.

 

Visy Recycling’s submissions

Alana Loy, QLD Fleet Manager at Visy Recycling submitted the following:

• At no time had Visy Recycling employed Beazley, and his rate of pay and other employment arrangements were the sole responsibility of Ranstad
• When Visy Recycling engages an employee it issues the employee a written contract of employment and it had not done so in Beazley’s case

 

Beazley’s submissions

Beazley argues that he was an employee of Visy Recycling on the basis that Visy’s supervisors assigned his work and supervised him, and effectively controlled his work.

He also relied upon correspondence from Chris Coull, a Fleet Controller at Visy, dated 30 March 2011 to a representative of Queensland Corrective Services pertaining to the conditions of Beazley’s Probation Order (the details of which are irrelevant for this case). The correspondence on Visy letterhead requested permission for Beazley to carry out a scheduled run outside the Queensland border.

Beazley also provided a Training Contract signed by both Alana Loy on behalf of Visy Recycling and Beazley. This document identifies Visy Paper Pty Ltd ATF Southern Paper Converters Trust as Beazley’s employer.

 

Visy Recycling’s response

Alana Loy stated that Visy Recycling paid for all of Ranstad’s employees at that time to undertake training. She said that despite the fact that Visy had paid for the training, this did not transfer employment of the Ranstad employees to Visy Recycling. Furthermore, she submitted that the reason why Visy Recycling had signed the forms in that way was simply because the form did not provide for the type of arrangement which existed between Visy Recycling, Ranstad and Beazley.

In relation to the letter sent by Chris Coull, Alana Loy drew attention to the following passage:

“This is to confirm that Dale Beazley is currently employed with Visy Recycling on a Full-time basis as a Truck Driver.

She argued that the use of the “with” and not “by” was deliberate before conceding that the letter was poorly drafted.

 

Tribunal’s Conclusions

In regards to the correspondence provided by Chris Coull to the Queensland Corrective Service, it is evident that while it does not expressly state that Visy Recycling is Beazley’s employer, when read objectively it could easily be interpreted in that way. However, the Tribunal agreed the letter was poorly drafted.

It was not appropriate for Visy Recycling to sign the Training Contract if it did not believe that it was the relevant employer. However, the act of signing this contract did not create an employment relationship between Visy Recycling and Beazley.

The material provided to the Tribunal indicates a common arrangement of a labour hire agency as employer, hiring out an employee’s services to a host employer (i.e. Visy Recycling) where the employee works at the host’s premises and is supervised by the host’s staff.

No written employment contracted ever existed between Visy Recycling and Beazley. Meanwhile, there is clear evidence that a written employment contract was entered into between Ranstad and Beazley. There is no clear evidence that contract was somehow superseded by a new oral contract between Beazley and Visy Recycling. Consequently, for the purposes of the application, Visy Recycling was not the employer.

Moreover, Beazley was terminated on 9 January 2012, which meant that the minimum employment period required in order to bring an Unfair Dismissal application was not satisfied (Fair Work Act 2009 s 383).