FEDERAL COURT OF AUSTRALIA
Urquhart v Automated Meter Reading Services (Aust) Pty Ltd [2008] FCA 1447
Workplace Relations Act 1996 (Cth) ss 149(1)(d), 170MB, 178, 178(6A), 256
Electricity Industry Act 2000 (Vic) ss 1, 3, 16, 18, 19, 20, 21, 26, 29(3), 40A(4), 40A(5), 44
Essential Services Commission Act 2001 (Vic) s 53
National Wage Case (1988) 25 IR 170 cited
National Wage Case (1989) 30 IR 81 cited
PP Consultants Pty Ltd v Finance Sector Union of Australia (2000) 201 CLR 648 applied Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194 applied
Stellar Call Centres Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal Plumbing and Allied Services Union (2001) 106 FCR 302 referred to
Construction Forestry Mining & Energy Union v Henry Walker Eltin Contracting Pty Ltd (2001) 108 IR 409 discussed
Minister of State for Employment, Workplace Relations and Small Business v Community and Public Sector Union (2001) 109 FCR 303 cited
North Western Health Care Network v Health Services Union of Australia (1999) 92 FCR 477 discussed
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 cited
Australian Rail Tram and Bus Industry Union v Torrens Transit Services Pty Ltd (2000) 105 FCR 88 cited
Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 referred to
GRANTLEY URQUHART v AUTOMATED METER READING SERVICES (AUST) PTY LTD ACN 067 612 711
VID 696 of 2005
KENNY J
23 SEPTEMBER 2008
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 696 of 2005 |
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BETWEEN: |
GRANTLEY URQUHART Applicant
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AND: |
AUTOMATED METER READING SERVICES (AUST) PTY LTD ACN 067 612 711 Respondent
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KENNY J |
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DATE OF ORDER: |
23 SEPTEMBER 2008 |
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WHERE MADE: |
MELBOURNE |
THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 696 of 2005 |
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BETWEEN: |
GRANTLEY URQUHART Applicant
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AND: |
AUTOMATED METER READING SERVICES (AUST) PTY LTD ACN 067 612 711 Respondent
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JUDGE: |
KENNY J |
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DATE: |
23 SEPTEMBER 2008 |
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PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
Introduction
1 In 1989, the applicant, Grantley Urquhart, commenced employment with the State Electricity Commission of Victoria (“SECV”). At that time, the SECV employed him as a meter reader/collector in Hamilton. Mr Urquhart remained a meter reader for many years although the identity of his employer changed. At all material times, Mr Urquhart was a member of the Australian Municipal, Administrative, Clerical and Services Union (“ASU”), an organisation registered under the Workplace Relations Act 1996 (Cth) (“the Workplace Relations Act”).
2 The respondent, Automated Meter Reading Services (Aust) Pty Ltd (“AMRS”), is a company that specialises in providing meter reading services to the utilities industries in Australia. AMRS is not an electricity distributor.
3 The central questions in this proceeding are whether, for the purposes of ss 170MB(2) and 149(1)(d) of the Workplace Relations Act, AMRS is the transmittee of the business or part of the business of Powercor Australia Ltd (“Powercor”). If so, there is a further question whether AMRS breached an award and certified agreements to which Powercor was a party. For the reasons stated below, I would answer the first question in the negative and dismiss this application.
4 Mr Urquhart alleges that AMRS has breached the Power and Energy Industry, Electrical, Electronic and Engineering Employees Award 1998 (“the 1998 Award”), which bound both the ASU and Powercor, the Powercor Australia Ltd Enterprise Agreement 1999 (“the 1999 Agreement”) and the Powercor Australia Enterprise Agreement 2002 (“the 2002 Agreement”) in respect of its employment of him and sought orders, under s 178 of the Workplace Relations Act, that AMRS:
(a) pay penalties in relation to these breaches and that such penalties be paid, pursuant to s 256 of the Workplace Relations Act, to the ASU;
(b) pay to Mr Urquhart the amount that AMRS was required to pay under the 1998 Award, 1999 Agreement and the 2002 Agreement and has failed to pay (“the underpayment”); and
(c) pay, pursuant to s 178(6A), to or for Mr Urquhart, an amount for the purpose of restoring him, as far as practical, to the position he would have been in had AMRS not failed to pay the amount it was obliged to pay by way of superannuation.
Mr Urquhart relied on the Workplace Relations Act as in force during the period of the alleged breaches – between 28 March 2002 and 8 November 2004. Mr Urquhart did not rely on the provision for transmission, succession and assignment in the 1998 Award: see clause 3.1 of the 1998 Award.
Factual context
5 The questions for determination arise in part from the reorganization of the electricity industry in Victoria and, according to Mr Urquhart, in part from the restructuring consequent upon the delivery of the National Wage Cases on 12 August 1988 and 7 August 1989: see (1988) 25 IR 170 and (1989) 30 IR 81.
6 As at 1989, the SECV undertook all functions of the electricity industry in Victoria, including the three functions of generation, transmission, and distribution (including retail). At that time, the SECV divided its workforce into divisions.
7 On 2 August 1990, the Australian Industrial Relations Commission (“the Commission”) made the [SECV] Electrical Electronic and Engineering Employees Award 1989 (“the 1989 Award”). The 1989 Award superseded the Municipal Officers’ Association of Australia (State Electricity Commission, Victoria) Award 1988. The 1989 Award provided for pay rates in 5 bands with 5 levels in each band. The career streams did not provide for specific jobs, although there were some allowances made for specific employees.
8 Also around this time, in the early 1990s, there was a large-scale restructuring of the Victorian electricity industry. In 1992, the SECV separated generation, transmission and distribution in order that a different entity might perform each one. An entity called Electricity Services Victoria assumed the function of distribution (including retail).
9 In 1994, prior to privatisation in 1995, Electricity Services Victoria was itself split into five separate businesses, each of which covered a different area of Victoria. Powercor assumed responsibility for one of these businesses. Powercor was licensed to distribute electricity to western Victoria and western metropolitan Melbourne.
10 Also in 1994, Mr Urquhart commenced employment with Powercor as a meter reader. Between January 1997 and November 1997, he mostly carried out what were termed “special meter reading” duties but sometimes performed standard (or “general”, “cycle” or “field”) meter reading duties. In the interests of clarity, I use the word “standard” in these reasons to describe “general”, “cycle” or “field” meter reading, acknowledging that in the industry it is commonly described simply as “meter reading”. Employees performing “standard” meter reading are referred to in these reasons as “standard meter readers”, although usually described in the industry as simply “meter readers”.
11 In November 1997, Powercor entered into a contract with Victoria Meter Management Pty Ltd (“VMM”), a company that was in the business of reading meters for utility companies providing electricity, gas or water, to perform standard meter reading (“the VMM contract”). The result was that, from 24 November 1997, Powercor no longer undertook standard meter reading. VMM performed this task instead. According to Mr Minster, from Powercor, (and I accept) when Powercor decided to outsource meter reading in late 1997, Powercor had about 50-60 meter readers out of a workforce of about 1,000 to 1,100 employees. At this time, the meter readers fell into three groups: (1) meter readers who accepted Powercor’s redundancy package and took up employment with VMM; (2) meter readers who accepted the package but did not take up employment with VMM; and (3) meter readers (like Mr Urquhart) who stayed with Powercor and did work other than standard meter reading.
12 Mr Lang, also from Powercor, gave evidence (and I accept) that, during the VMM contract, Powercor ceased standard meter reading and undertook only special meter reading. His uncontested evidence was that Powercor periodically issued VMM with a reading cycle through a Portable Data Entry device (“PDE device”) that VMM meter readers operated. VMM’s meter readers would read the meters, record the information in the PDE device and download the information onto Powercor’s technology system. Mr Lang’s evidence was that Powercor provided VMM with logo and badges to gain access to premises. Powercor also owned the tongs that were used to seal the meters. VMM provided uniforms, vehicles and employed workers. Mr Minster gave evidence to like effect.
13 From 1994 until October 1999, Mr Urquhart remained an employee of Powercor. Save for two weeks around 13 April 1999 when he performed some standard meter reading, from November 1997, he carried out only special meter reading as an employee of Powercor.
14 In the electricity industry, a special meter reader has a different role from that of a standard meter reader. I accept that, as Mr Minster said, the position of special meter reader was separate from that of standard meter reader. There was little real dispute between the parties as to the duties of standard and special meter readers. Mr Urquhart’s evidence was (and I accept) that special reading involved “reading meters for new connections and for disconnections resulting from non payment of accounts” and “matters concerned with tariff application such as re-checking meters following customer complaints about high readings and undertaking basic energy audits”. Mr Urquhart described standard meter reading as involving monthly and quarterly reading, as well as investigating possible meter interference and reporting safety issues. He also said that the standard meter reader performed some additional tasks, including investigating tampering with meters, identifying safety problems with lines, poles, or service connections, and reprogramming meters to ensure the correct data was collected. The principal role of a standard meter reader was to attend a customer’s premises and read the meter to identify how much electricity had been consumed. Mr Gallagher, AMRS’s managing director, gave evidence to similar effect as to the duties of special meter readers and standard meter readers.
15 There were various certified agreements applicable to the SECV and/or Powercor in the 1990s. On 1 October 1992, the Commission certified the SECV Conditions of Employment Agreement 1992 (“the 1992 Agreement”), to which the ASU, amongst others, was a party. The Commission certified the Electricity Services Victoria Enterprise Agreement 1993 (“the 1993 Agreement”) in 1993. On 24 November 1995, the Commission certified the Powercor Australia Ltd Enterprise Agreement 1995 (“the 1995 Agreement”). The 1995 Agreement made provision for a 5 level broad-banded structure as in 1989 Award, but changed the title of each level from a numerical band number to an alphabetical description.
16 A different pay structure was introduced when the Commission certified the Powercor Australia Ltd Partnership Enterprise Agreement 1997 (“the 1997 Agreement”) on 1 August 1997. Clause 16.3.1 provided for a 30 point salary structure, upon the basis that “[t]ranslation will be at the equivalent position to that which the employee occupies on the current 5 band structure”. Clauses 16.3.2-4 stipulated the system for working out the translation from the 5 band structure to the 30 point structure.
17 Some months later, on 23 February 1998, the Commission certified the VMM Powercor Contract Enterprise Agreement 1997 (“the VMM 1997 Agreement”). The VMM 1997 Agreement came into force on 23 February 1998 and applied in respect of VMM employees engaged to fulfil VMM’s contract with Powercor, expressly binding VMM “[o]nly in respect of employees of [VMM] who [were engaged] to fulfil Powercor Contract duties”. The VMM 1997 Agreement included provisions for meter reader salary rates and casual employees.
18 On 30 June 1998, the Commission made the 1998 Award, which is relied on by Mr Urquhart as the source of his entitlement to relief. The 1998 Award replaced the 1989 Award. The 1998 Award was binding on Powercor and ASU and did “not affect the existing custom and practice relating to coverage of classification” (clause 3.4). Clause 5.6 defined “employee” as a person employed under the 1998 Award. Clause 8.1 provided for employment “by the fortnight” (clause 8.1.1) and permanent part-time employment (clause 8.3). Clause 8.2 also made specific provision for casual employment. Clause 8.2.2, on which Mr Urquhart particularly relied, provided that: “[a] casual employee for working ordinary time shall be paid per hour one thirty-seventh and a half of the weekly rate prescribed in this award for the classification of work performed plus a loading of 25%”. Clause 9.2 provided for 5 broad-banded levels, in each of which were a number of career streams including for administrative officers. The 1998 Award continued allowance entitlements in the 1989 Award in relation to employees engaged on meter reading duties on a full-time permanent basis (clauses 12.2.5.5 and 26.2.7).
19 In April 1999, Powercor terminated its meter reading contract with VMM. Mr Lang, who was Powercor’s responsible officer at this time, deposed that he made an interim arrangement with Marshmans Personnel Geelong Pty Ltd (“Marshmans”), with the result that Powercor entered into a contract with Marshmans (“the Marshmans contract”) to provide the labour, from 19 April 1999, to perform the meter reading function. Mr Lang’s uncontested evidence was that, although Marshmans was a labour hire company rather than a meter reading company, Marshmans ran the meter reading functions “in almost exactly the same way as …VMM”, save that the amount paid to Marshmans was calculated on an hourly rate. Mr Minster said (and I accept) that:
[Marshmans] continued with renting and leasing the premises for downloading the meter reading data and the equipment, they leased the vehicles, they used Powercor identification for access purposes but they engaged and employed meter readers themselves. They supervised, managed and were in charge of the personnel. The work required was set by Powercor and the data was managed when received from [Marshmans] employees.
20 Powercor did not re-employ any meter readers after the termination of its contract with VMM. As already noted, however, whilst still with Powercor, Mr Urquhart performed standard meter reading duties for two weeks around 13 April 1999.
21 On 19 August 1999, the Commission certified the 1999 Agreement under Div 2 of Pt VIB of the Workplace Relations Act. Amongst other things, the 1999 Agreement provided that:
(a) it was binding on Powercor and any subsidiary or successor companies and the ASU and its members (clause 4);
(b) it was “underpinned” by the 1989 Award as it applied on 30 June 1998; the 1998 Award; the 1992 Agreement; the 1993 Agreement; the 1995 Agreement; and the 1997 Agreement (clause 6.1);
(c) throughout the life of the 1999 Agreement, all existing terms and conditions of employment prevailed unless agreed otherwise by the parties (clause 6.1);
(d) the conditions referred to in clause 6.1 (see (c) above) were derived from the awardsand enterprise agreements binding on the parties and agreed policies and where there was any inconsistency the 1999 Agreement should take precedence (clause 6.2); and
(e) Appendix C to the 1999 Agreement was a schedule of “Rates of Pay”, which included a pay point 12. The 1999 Agreement continued the 30 pay point structure introduced by the 1997 Agreement.
22 On 18 October 1999, Powercor offered a redundancy package to Mr Urquhart, with effect from 27 October 1999. Mr Urquhart accepted the package. On 1 November 1999, he commenced employment with Marshmans as a standard meter reader. Mr Urquhart said, and I accept, that, while working at Marshmans, he was given “a Powercor vehicle, Powercor portable data machine, wore Powercor corporate clothing and carried a Powercor identity card”. He also said that Powercor provided him with a PDE and “the itineraries and specific instructions on tasks and how they were to be performed”.
23 On 8 March 2002, on the termination of the Marshmans contract, Powercor contracted out its meter reading function to AMRS. Under this contract with Powercor (“the 2002 contract”), AMRS was engaged “to supply labour with skills and expertise” in “cyclic meter reading activities” (clause 9, item 4 of Annexure, and Schedule 1). Also under the contract, AMRS was to provide “an accurate and timely Meter Reading, inspection and reporting service” (Schedule 1).
24 After the termination of its contract with Marshmans, Powercor did not re-employ any meter readers or perform any standard meter reading function for itself. On 25 March 2002, Mr Urquhart commenced employment with AMRS as a standard meter reader. His employment with AMRS was on a casual basis.
25 On 17 April 2002, the Commission certified the 2002 Agreement under Div 2 of Pt VIB of the Workplace Relations Act. Amongst other things, the 2002 Agreement also provided that:
(a) it was binding on Powercor and any subsidiary or successor companies and the ASU and its members (clause 4);
(b) it was underpinned by the 1989 Award as it applied on 30 June 1998; the 1998 Award; the 1993 Agreement; the 1995 Agreement; the 1997 Agreement; and the 1999 Agreement (clause 6.1);
(c) throughout the life of the 2002 Agreement, all existing terms and conditions of employment prevailed unless agreed otherwise by the parties (clause 6.1);
(d) the conditions referred to in clause 6.1 (see (c) above) were derived from the awards and enterprise agreements binding on the parties and agreed policies and custom and practice in operation on the date of certification of the 2002 Agreement and that where there was any inconsistency the 2002 Agreement should take precedence (clause 6.2); and
(e) Appendix D to the 2002 Agreement provided a schedule of Pay Scales including pay point 12. The 2002 Agreement continued the 30 pay point structure introduced by the 1997 Agreement and continued by the 1999 Agreement.
26 On 22 May 2003, Powercor and AMRS entered into a contract (“the 2003 contract”) for the provision of special meter reading services by AMRS (clause 7, item 5 of Annexure, and Schedule 1). Mr Lang’s evidence was (and I accept) that the subsequent arrangement with AMRS to provide meter reading services “was essentially the same as that between Powercor and VMM”.
27 On 7 June 2004, the Commission made the award known as the ASU/AMRS Powercor Award 2003.
28 On 1 October 2004, Powercor and AMRS entered into a contract (“the 2004 contract”) for the provision by AMRS of standard meter reading and special meter reading, as well as inspection and reporting services (clause 3.1, Schedule 1). At no stage between its contract with AMRS in 2002 and October 2004 did Powercor re-employ any meter readers or perform any standard meter reading function for itself.
29 On 8 November 2004, Mr Urquhart ceased employment with AMRS. He undertook some special meter reading duties for AMRS in the last month (or possible months) of his employment.
30 I accept that, as counsel for AMRS submitted, Mr Urquhart was unable to give admissible evidence as to his correct classification under relevant industrial instruments. For present purposes, it suffices to note that payslips exhibited to his affidavit of 2 April 2007 showed that the SECV and/or Powercor paid him on the basis he was classified: (1) as at 11 April 1991 – at band 1.5; (2) as at 4 November 1993 – at band 2.3; (3) as at 15 December 1994 – at band 2.4; (4) as at 18 May 1995 – at band 2.5; and (5) as at 16 September 1997 – at pay point 12. The reference to “band” was a reference to the pay structure under the 1998 Award, whilst the reference to “pay point” was a reference to the pay structure under the 1997 Agreement. Mr Urquhart’s “role statement” dated April 1997 referred to his job title as “special reader/meter reader” and his band as 1/2, that is, band 1 or 2. Mr Rizzo, from the ASU, also gave evidence that meter readers employed by the SECV and Powercor were classified within the 5 band structure of the 1998 Award at level 1/2.
31 In addition, Mr Rizzo said that, following the introduction of the 30 point classification structure under the 1997 Agreement, he attended meetings with Powercor, at which Powercor gave him information as to the translation of employees to the new pay points. His evidence, in cross-examination, was that, around 24 March 1998, Powercor had given him a document entitled “Employees – by Job and Paypoint”, which reflected the translation process for around half of Powercor’s employees. This document showed that Mr Urquhart was, like most meter reader/special readers, identified as at pay point 12. Mr Rizzo’s evidence was that this was the final placement for Mr Urquhart.
32 Mr Minster, from Powercor, substantially agreed with Mr Rizzo’s account of the implementation of the various industrial agreements. He deposed (and I accept) that, after the 1997 Agreement, there was a process of reclassifying employees for the purposes of that Agreement. He said that, “[f]rom the time of the 1997 Agreement beginning to operate until the meter reading function of Powercor was tendered out in late 1997 to VMM, Powercor still employed meter readers”. Hence, meters readers were included in the reclassification process after the 1997 Agreement, as the Powercor documents produced by Mr Rizzo indicated. Mr Minster agreed with Mr Rizzo that job evaluations of Award positions were carried out during 1998. Mr Minster’s evidence was, however, (and I accept) that, by January 1998, Powercor no longer employed standard meter readers, although it still employed some special meter readers, such as Mr Urquhart. This remained the position until Powercor made the 2004 contract with AMRS. Mr Minster deposed (and I accept) that “[n]ew job structures based on competencies were introduced during that 1999 [Agreement] and they did not include Meter Readers”.
33 In cross-examination, Mr Minster agreed that, since 1998, the shift allowance for which clause 16.5 of the 1998 Award provided and other allowances were calculated as a percentage of the then current certified agreement. Furthermore, he said that long service leave, sick leave and the like had been paid on the relevant enterprise bargaining rate. According to Mr Minster “everything [was] paid in accordance with the enterprise agreement”. Also in cross-examination, Mr Minster agreed that, under the awards, meter readers were allocated to the administrative stream. This evidence was received subject to AMRS’s objection as to relevance.
34 I interpolate at this point that some other evidence was received subject to similar relevance objections by AMRS. For the reasons that appear below, it is unnecessary to say anything further about them.
Statutory framework
35 The Workplace Relations Act as it stood at the relevant time is critical to Mr Urquhart’s application. At the relevant time, Pt VIB of the Workplace Relations Act dealt with certified agreements. Division 6 of Pt VIB concerned persons bound by certified agreements and included subs 170MB(2), which provided:
If:
(a) an employer is bound by a certified agreement; and
(b) the application for certification of the agreement stated that it was made under Division 2; and
(c) at a later time, a new employer that is a constitutional corporation or the Commonwealth becomes the successor, transmittee or assignee (whether immediate or not) of the whole or a part of the business concerned;
then, from the later time:
(d) the new employer is bound by the certified agreement, to the extent that it relates to the whole or the part of the business; and
(e) the previous employer ceases to be bound by the certified agreement, to the extent that it relates to the whole or the part of the business; and
(f) a reference in this Part to the employer includes a reference to the new employer, and ceases to refer to the previous employer, to the extent that the context relates to the whole or the part of the business.
(Emphasis added.)
The parties proceeded on the assumption that AMRS was in fact a constitutional corporation.
36 Section 149, in Div 6 of Pt VI, dealt with persons bound by awards. Subsection 149(1) read as follows:
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 added.)
37 Section 178 of the Workplace Relations Act provided for the imposition and recovery of penalties for breaches of awards and certified agreements: see especially subss 178(1), (2), (6) and (6A). It is unnecessary to set these provisions out here.
The parties’ submissions
38 In substance, Mr Urquhart’s case was that:
(a) When Powercor contracted out its meter reading function to AMRS in 2002 and 2004, part of Powercor’s business (namely, meter reading) was transmitted to AMRS.
For Mr Urquhart, counsel argued that meter reading was part of Powercor’s business prior to the VMM contract. He argued that Powercor took back this part of its business when the VMM contract terminated and, again, when the Marshmans contract ended. Counsel contended that the Electricity Industry Act 2000 (Vic) (“the Electricity Industry Act”), the Electricity Distribution Licence, and the numerous regulatory Codes illustrated “both the essential part metering play[ed] in the distribution of electricity as well as the ongoing obligations of the distributor, regardless of whether or not the task [had] been outsourced”. Counsel argued that, “[b]y reason of the … obligations imposed on distributors and conditions of licence meter reading and the related activities undertaken by meter readers [meter reading] was more than an ancillary part of the business of a distributor and [was] in fact a necessary part of the business”. He submitted that whether or not Powercor performed meter reading between the contracts was irrelevant. For the duration of the contract between Powercor and AMRS, AMRS had “what … Powercor has within its power to give”.
Counsel for Mr Urquhart relied on PP Consultants Pty Ltd v Finance Sector Union of Australia (2000) 201 CLR 648 (“PP Consultants”), Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194 (“Gribbles”) and Stellar Call Centres Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal Plumbing and Allied Services Union (2001) 106 FCR 302 (“Stellar Call Centres”). He also relied on Construction Forestry Mining & Energy Union v Henry Walker Eltin Contracting Pty Ltd (2001) 108 IR 409 (“CFMEU v Henry Walker Eltin”), Minister of State for Employment, Workplace Relations and Small Business v Community and Public Sector Union (2001) 109 FCR 303 and North Western Health Care Network v Health Services Union of Australia (1999) 92 FCR 477 (“North Western Health Care”).
(b) In these circumstances, by operation of ss 149(1)(d) and 170MB(2) of the Workplace Relations Act, the 1998 Award, the 1999 Agreement and the 2002 Agreement were binding on AMRS.
Counsel for Mr Urquhart referred to the 1965 Award, 1969 Variations, the National Wage Cases, the 1998 Award, the 1999 Agreement and the 2002 Agreement in support of his submission that, whilst employed by AMRS, Mr Urquhart was entitled to be paid wages and superannuation at the rate for which the 1999 Agreement and the 2002 Agreement provided, and not at the rate he was in fact paid by AMRS, but with the loading prescribed by the 1998 Award. He referred to the principles for interpreting awards in various cases, including in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426. He contended that, properly construed, the underpayment that Mr Urquhart claimed in his relief (see [4]) included the loading for which the 1998 Award provided calculated by reference to the 1999 and 2002 certified agreement rates (as well as the difference between the amounts for which these certified agreements provided and that which he was actually paid).
39 AMRS responded that:
(a) Powercor’s contracting out of the meter reading function did not constitute a transmission of business as meter reading was not Powercor’s business, or part of its business. Rather, meter reading was an ancillary function that supported the core business of Powercor, which was to distribute electricity. AMRS also relied on PP Consultants, Gribbles and Stellar Call Centres.
AMRS submitted that meter reading was not an essential, or even significant, part of the business of distributing electricity. Nor was it part of the development or maintenance of the assets used to generate electricity, the use of which enabled a fee to be charged to the retailers. AMRS contended that there was a material difference between the metering of electricity use and the reading of meters. This distinction was apparent in each of the outsourcing contracts and in Powercor’s distribution licence.
(b) If it were wrong in the above submission, then there was no transmission of business to AMRS in 2002 and 2004 as it had already been transmitted to VMM in 1997. Powercor had not, since that time, “contracted in” the meter reading function. Hence, at the time of contracting out meter reading to AMRS, Powercor had no meter reading business left to transmit. Alternatively, there was no transmission because, under Powercor’s distribution licence and the relevant Codes, Powercor retained the obligations with respect to meters and meter-reading. Further, there was no transfer of assets from Powercor to AMRS.
(c) If Powercor’s meter reading function constituted its business or part of its business and such business was transmitted to AMRS, then neither the 1998 Award, nor the 1999 Agreement and the 2002 Agreement applied to meter readers (such as Mr Urquhart). Therefore, Mr Urquhart was not entitled to be paid in accordance with those instruments.
AMRS argued that, even if a generous approach was adopted to the interpretation of the 1998 Award, there was nothing in the 1998 Award that imposed a legal obligation on Powercor to classify, or pay, meter readers under the 1998 Award. Moreover, the history did not disclose that that there was any previous agreement or award relevant to the 1998 Award showing that meter readers were to be covered by the award.
Neither the 1999 Agreement nor the 2002 Agreement expressly sets out which Powercor employees were to be covered by these agreements. Rather, by reference to Appendix C in the case of the 1999 Agreement and Appendix D in the case of the 2002 Agreement, each instrument sets out rates of pay within the structure of a 30-point pay scale. In the absence of express provision, AMRS contended that it was proper to consider the industrial and statutory context surrounding the Agreements. This required attention to the objective facts. AMRS argued that the translation exercise undertaken within Powercor after the 1997 Agreement was not relevant to the construction question. Even if this exercise could be taken into account in construing the 1999 Agreement, at the time of certification of the 1999 Agreement (and the 2002 Agreement), Powercor did not employ any standard meter readers. AMRS submitted that, in the circumstances, it could not be said that, viewed objectively, the pay point classification scheme in the two agreements was intended to cover standard meter readers. AMRS further argued that its approach was supported by the statutory context surrounding the certification of enterprise agreements. AMRS submitted that clause 8.2.2 of the 1998 Award made it clear that the loading of 25% attached to the rates of pay prescribed in the Award and not the rates in the 1999 or 2002 Agreements.
Consideration
40 I discuss below the first two questions on which Mr Urquhart’s claim depended. These two questions are:
(1) Was meter reading a part of Powercor’s business?
(2) If meter reading was a part of Powercor’s business, was it transmitted to AMRS in 2002 (and/or 2004)?
If the first of these questions is answered in the negative, then Mr Urquhart’s claim must fail. For the reasons stated below, this is the answer I would give. I would, as indicated below, also answer the second question against Mr Urquhart.
41 In these circumstances, there is no occasion to consider the question whether the industrial instruments on which Mr Urquhart relies (the 1998 Award, the 1999 Agreement and the 2002 Agreement) applied to him whilst in the employ of AMRS; and, if so, whether they gave rise to an obligation on AMRS’s part in respect of Mr Urquhart’s employment that has been breached. These questions lack any basis in fact to justify their further consideration.
Was meter reading a part of Powercor’s business?
42 The first critical question is whether, for the purposes of ss 149(1)(d) and 170MB(2) of the Workplace Relations Act, AMRS is the transmittee of the business or part of the business of Powercor. Whether there has been transmission (or a succession or assignment), for these purposes, is a mixed question of fact and law. PP Consultants indicates how this question should be considered.
43 According to PP Consultants, as a general rule, in a case such as the present, it is necessary, first, to identify or characterise the business or the relevant part of the business of the first employer; secondly, to identify the character of the transferred business activities in the hands of the new employer; and, thirdly, to compare the two business: see PP Consultants at 655 per Gleeson CJ, Gaudron, McHugh and Gummow JJ. If, in substance, the business of the first employer has the same character as the transferred business activities in the hands of the new employer, then it may be possible to say the business, or a part of the business of the first employer had been transmitted to the new employer. If the business of the first employer does not have the same character as the transferred business activities of the new employer, then there can be no transmission (or succession or assignment).
44 The joint judgment in PP Consultants illustrates this approach. The analysis began with the proposition that St George Bank Ltd was in the business of banking and the activities in which it engaged at its branch at Byron Bay were part of its banking business (at 655). The pharmacist that the Bank appointed to carry on a branch agency after it closed this branch did not engage in the business of banking, although it engaged in banking activities (at 656). The pharmacist was, so their Honours held, carrying on the business of a banking agent. Their Honours said (at 656):
All that has happened is that the Bank has changed the method by which it carried on its banking business in Byron Bay. Thus, no part of the Bank’s business has been acquired by the [pharmacist], whether as successor, assignee or transmittee.
On this approach, the fact that the activities carried on by the old and new employers were the same as far as the employees were concerned was immaterial.
45 Gribbles also concerned s 149(1)(d) of the Workplace Relations Act, although the focus in this case was on the meaning of the word “successor” in this provision. A company called Region Dell Pty Ltd conducted medical clinics, including one at Moorabbin. The company licensed the use of part of the Moorabbin clinic’s premises for a radiology practice. The company also supplied the equipment. The radiology practice supplied the radiographers, consumables and the like. The company had granted three such licences – the first, to Southern Radiology; the second until 31 August 1999, to MDIG; and the third, from 1 September 1999, to Gribbles. In 2000, Gribbles terminated the employment of the radiographers at Moorabbin. If Gribbles were bound by the Award that had bound MDIG, then Gribbles was bound to pay severance pay to the radiographers. This turned on whether Gribbles was a successor, for the purposes of s 149(1)(d), to or to any part of the business of MDIG. In a joint judgment, Gleeson CJ, Hayne, Callinan and Heydon JJ held that it was not.
46 In the course of this judgment, their Honours touched on the meaning of the word “business” in this context. As their Honours said, to be a “successor” (or assignee or transmittee), it is not enough that the new employer pursues the same kind of business as the old: Gribbles at 211. What was meant by the word “business” in this context depends on s 149(1)(d), which “focuses upon succession, assignment and transmission to or of a business which is identified as the business of an employer”, which “necessarily directs attention to what it is that the former employer had which is to be described as the ‘business’ of that employer”: Gribbles at 211. Their Honours went on to say (at 212):
The ‘business’ of an employer may be constituted by a number of different assets, both tangible and intangible, that are used in the particular pursuit, whether of profit (if the ‘business’ is a commercial enterprise) or other ends … In the case of a commercial enterprise, identifying the employer’s ‘business’ will usually require identification both of the particular activity that is pursued and of the tangible and intangible assets that are used in that pursuit. The ‘business’ of an employer will be identified as the assets that the employer uses in the pursuit of the particular activity. It is the assets used in that way that can be assigned or transmitted and it is to the assets used in that way that an employer can be a successor.
The new employer may be a successor, assignee or transmittee to or of the business, or part of the business, of an employer who was a party to the relevant industrial dispute if the new employer, having the beneficial use of assets which the former employer used in the relevant pursuit, uses those assets in the same or a similar pursuit. … Whether the new employer is a successor, assignee or transmittee, will require examination of whether what the new employer has can be described as a part of the former employer’s business.
In s 149(1)(d) of the Workplace Relations Act, “the business or part of the business” of the former employer – which in the present case is Powercor – is thus to be characterised by reference to the particular activity that it pursued and the assets that it used in that pursuit. As Stellar Call Centres shows, whether a new employer “becomes the … transmittee … of the whole or a part of the business concerned”, for the purposes of subs 170MB(2) depends on much the same inquiry.
47 Stellar Call Centres applied the reasoning in PP Consultants to an inquiry under ss 149(1)(d) and 170MB(1) (which, for present purposes, is in relevantly the same terms as s 170MB(2)). In the Full Court of this Court, Stellar Call Centres challenged the decision of the judge at first instance that, pursuant to ss 149(1)(d) and 170MB(1) of the Workplace Relations Act, it was bound by awards and certified agreements binding on Telstra Corporation Ltd (“Telstra”). The question was whether a part of Telstra’s business that involved the taking and responding to telephone calls from Telstra’s customers had been transmitted to Stellar Call Centres. The Full Court held that there was no such transmission, chiefly because the receiving of the calls from customers were “activities in support of Telstra’s businesses in the telecommunication industry” but were “not themselves … the business or part of the business of Telstra”: see Stellar Call Centres at 311. The Full Court said (at 311):
That business can appropriately be characterised as providing telecommunications services to its customers. In the course of conducting that business, Telstra is called upon to respond to enquiries, requests for services and complaints from its customers, including those made by telephone. However, the making of those responses is not a distinct ‘part’ of Telstra’s business within the meaning of s 149(1), as explained by the High Court, any more than, for example, cleaning undertaken as a necessary aspect of the conduct of a restaurant is a ‘part’ of the business of the restauranteur.
The business of Stellar Call Centres was the provision of telephone answering services. The answering of calls was not, however, a part of Telstra’s business; and, accordingly, there was no transmission of that part of Telstra’s business.
48 Having regard to the considerations set out below, I find that, as at 2002 and 2004, Powercor was in the business of using significant assets to distribute electricity to western Victoria and western metropolitan Melbourne. This is what Powercor was licensed under the Electricity Industry Act to do. It had two lesser businesses that are not presently material. Meter-reading was not the business or part of the business of Powercor as at 2002 and 2004, or in the preceding years. AMRS was, however, engaged in meter reading activities. Its managing director, Mr Gallagher, said (and I accept) that the company had over 600 employees, reading 25 million meters a year and entering over 100,000 premises every day to do so. In these circumstances, there could be no transmission of the business or part of the business of Powercor for the purposes of ss 149(1)(d) and 170MB(2) of the Workplace Relations Act.
49 The character of AMRS’s business metering activities was not in dispute. Indeed, they were evident from the activities it contracted with Powercor to perform. Under the 2002 contract, AMRS provided a standard meter reading service, which included meter readers, who reported the data retained in the meters. Under the 2004 contract, AMRS provided a standard and special meter reading service. In substance, a standard meter reading service was also what Marshmans and VMM had earlier provided to Powercor under their contracts. Under each of these arrangements, Powercor itself provided the PDE devices, the information system onto which the data was downloaded, the ancillary equipment to read the meters, the information about the meters that were to be read and the time frames in which this was to be done: see clause 6 of the VMM contract; Schedule 2 of the Marshmans contract, Schedules 2 and 3 of the 2002 contract and Schedules 1 and 2 of the 2004 contract.
50 Powercor’s business can be identified from what the company was licensed to do under the Electricity Industry Act, the evidence of Mr Minster (Powercor’s Manager of Industrial Relations and Human Resources Systems) and Mr Lang (currently Powercor’s Manager of Asset Maintenance and, as at 1997, the company’s Manager – Connection Services) as well as from the regulatory framework that governed its activities as a licensee under the Electricity Industry Act.
51 The purpose of the Electricity Industry Act is and was to regulate the electricity supply industry in Victoria: see s 1. The generation, transmission and distribution of electricity is and was at the relevant times subject to a licensing regime: see s 16. Provision was made for the application for and grant of licences: see ss 18 and 19. Licences are and were subject to conditions determined by the Essential Services Commission (formerly the Office of the Regulator-General): see ss 20-21. These conditions include conditions relating to customer-related standards, procedures, policies and practices: s 26. By virtue of s 40A(5), a distribution company (as defined in s 3) and a retail customer (as also defined in s 3) are and were deemed to have entered into a contract on approved terms and conditions, of which notice had been given in conformity with subs 40A(4). Section 44 made provision for the regulation of metrology procedures.
52 At the relevant time, Powercor distributed electricity pursuant to an Electricity Distribution Licence issued under the Electricity Industry Act (“the licence”). Clause 2, which dealt with the grant of the licence provided that:
Subject to the conditions set out in this licence, the Licensee is licensed to distribute electricity for supply, and to supply electricity, in the distribution area and using distribution fixed assets.
The licensee’s obligations included the provision of connection services on a customer’s or retailer’s request: see clauses 5-8 & 10-11. The licensee was required to issue national metering identifies: see clause 14. The licence also obliged Powercor to comply with various Codes, including the Electricity Distribution Code (“the Distribution Code”) and the Electricity Customer Metering Code (“the Metering Code”): see, e.g., clause 21.
53 In summary, under the licence, Powercor distributed electricity for supply, to customers in the distribution area of western Victoria and western metropolitan Melbourne, using certain fixed assets. The licence imposed no obligation with respect to meter reading. The licence proved no support for the proposition that Powercor’s business was or included meter reading.
54 The evidence of Mr Minster established that Powercor’s principal business pursuit was the distribution of electricity over what was called a Network and involved transporting electricity from the various transmission terminal stations to zone substations and then to the end customers. The Network was a collection of assets such as poles, wires and substations, which Powercor owned and used to distribute the electricity. Mr Minster’s evidence established that Powercor sold its retail arm in 2001. His evidence also established that, as at 4 October 2007, Powercor owned 69 zone substations, 520,000 poles and over 82,500 kilometres of line length.
55 The evidence of Mr Minster showed that, with respect to distributing electricity, Powercor was divided into two main business units, namely:
(1) the Powercor Network Business Unit (“Network Business”), which was responsible for managing and developing the various assets that were used in electricity distribution; and
(2) the Powercor Services Unit (“Powercor Services”), which provided operational maintenance, engineering and contracting services for the Network Business.
The Network Business employed managers, engineers, system controllers and technical experts. Powercor Services employed managers, engineers, project managers, line workers, substation fitters and electricians, technical officers and designers. Powercor generated most of its revenue by charging the retailers of electricity a fee for the use of the Network.
56 As a licensed electricity distributor, as indicated at [52] above, Powercor had obligations to comply with the various Codes governing the electricity industry in Victoria, including the Distribution Code and the Metering Code. These latter Codes dealt with Powercor’s obligations as a distributor, particularly with regard to the supply and maintenance of assets. None of these Codes expressly required Powercor to make standard meter readings, although the Metering Code imposed obligations with respect to meters and the collection of data and, in certain circumstances, special meter readings.
57 The Distribution Code as at January 2002 required that the distributor “provide, install and maintain standard metering and necessary associated equipment, at a suitable location to be provided by the customer”: see clause 2.1.1. Other obligations in the Distribution Code related to the management of the distribution assets (clause 3), the quality and reliability of the supply (clauses 4 and 5), and guaranteed service levels (clause 6). Save for clause 14, which required a distributor and a customer to comply with the Metering Code, metering was not otherwise dealt with in the Distribution Code.
58 The distributor’s obligations in relation to metering customers’ electricity usage were set out in the Metering Code: see, e.g., clauses 1.1, 5.1, 7.1, 9.1, 12.1, 13, 14.1 and 15.1. The Metering Code applied to a range of persons, not simply distributors. The Metering Code dealt with such matters as the location, installation and repair of metering equipment (clauses 2.3, 7.1, 12.1 & 6.1), the sealing of metering equipment (clause 4), the provision of a national metering identifier (clause 8), testing of metering equipment and accuracy assurance (clauses 9 & 10), and access to data (clause 14). Clause 13 concerned special readings. It provided that, “[o]n request by a retailer, a distributor or a responsible person (as the case may be) must use best endeavours to carry out a special meter read or an estimated read to enable the transfer of a customer to that retailer within a reasonable time of the request” (italics original). Clause 15.1 provided for an obligation to collect data, stating that “[i]n relation to the supply of electricity to a first tier customer, a distributor must collect data stored in metering equipment as frequently as is required to enable the retailer to discharge its minimum obligations under the Electricity Retail Code” (italics original). (Amongst other things, the Electricity Retail Code obliged the retailer to connect a customer who wanted the service and to render a bill based on a reading of the customer’s meter: see clauses 2 & 5.1.) Also under the Metering Code, there were further obligations in relation to the estimation of energy data, the validation and substitution of energy data, and the storage of energy data (clauses 16-17 and 19). In addition, the Metering Code made provision for the relationship between the distributor and bodies engaged to provide a metering function for the distributor: see clause 1.4.
59 Nothing in the Codes as discussed above would support the proposition that Powercor’s business was or included meter reading. Nothing in them detracts from the proposition that, at the relevant time, Powercor’s tangible assets were overwhelmingly deployed in operating and maintaining the Network to distribute electricity. Furthermore, as counsel for AMRS noted, the licence was also an asset for the business of using the Network to distribute electricity. Powercor was not in the business of meter reading or in a business that included the business of meter reading.
60 This conclusion is borne out by Mr Minster’s evidence concerning the supply of meters and the role of meter readers. His evidence established that premises supplied with electricity by Powercor were equipped with a meter that recorded how much electricity was used at the premises over a period of time. It was the primary task of the standard meter reader to read the meter and record the data onto a PDE device. The data on the PDE device was subsequently downloaded onto a computer and transported to a central information system accessed by Powercor. Powercor conveyed the information to retailers in order that they might bill their customers. The information gathered from reading the meters also enabled Powercor to establish how much to charge retailers for the use of the Network. Powercor did not derive revenue from meter reading directly.
61 I reject the submission for Mr Urquhart that meter reading was a part of Powercor’s business for the purposes of ss 149(1)(d) and/or 170MB(2) of the Workplace Relations Act. Meter reading was not a central part of Powercor’s licence obligations, as counsel for Mr Urquhart argued. It was an aspect of data collection. As noted already, under the Metering Code, Powercor was obliged to measure the use of electricity by a customer, in order that the retailer might bill the customer correctly and Powercor might charge the retailer appropriately for the use of the Network. The meter reading function was not, however, the same as the measurement of electricity usage. The meter reading function involved recording data measured by the meter in a PDE device and downloading this data from the PDE device onto Powercor’s information system. This function of meter reading was ancillary to its obligation to measure the use of electricity, which was itself ancillary to the business of Powercor, which was the use of its assets to distribute electricity. Counsel for Mr Urquhart also drew attention to the broader role of meter readers in reporting faults and other safety issues but this emphasises the ancillary nature of the meter reading function.
62 Counsel for Mr Urquhart relied on CFMEU v Henry Walker Eltin in support of his submission that meter reading was a part of the business of Powercor. CFMEU v Henry Walker Eltin should, however, be distinguished from the present case. In CFMEU v Henry Walker Eltin,the union sought a declaration that, pursuant to 170MB(2), the company (“HWE”) was bound by a certified agreement in relation to operations of the coal handling preparation plant previously operated by Ebenezer Mining Company Pty Ltd (“Ebenezer”). Branson J upheld the union’s claim. Her Honour found that, on the evidence before her, “the overall business of Ebenezer is, broadly speaking, that of causing coal to be extracted from the Mine and rendered fit for sale, and selling that coal either for export or domestic consumption” and that “the overall business of HWE is that of contractor to the mining and construction industries”: see CFMEU v Henry Walker Eltin at 416-17. Her Honour further found that the operation of the coal handling preparation plant was “itself carrying on” of the second aspect of Ebenezer’s business – the rendering of coal fit for sale. Thus, Branson J held (at 417) that the operation of the plant was a distinct part of the business of Ebenezer’s business “in the sense of a project or undertaking forming part of its overall business or a distinct operational unit within its overall business”. The operation of the plant was not, therefore, merely ancillary to Ebenezer’s business.
63 For the reasons stated above, apart from lesser businesses in the engineering and construction sector which are not presently material, the business of Powercor was the use of the Network for the distribution of electricity to the area under licence. Meter reading was not a distinct part of this business, as Mr Urquhart would have it. Meter reading was not a distinct project or undertaking in the sense of the operation of the plant by HWE, as discussed by Branson J in CFMEU v Henry Walker Eltin. Accordingly, CFMEU v Henry Walker Eltin does not assist Mr Urquhart’s case.
If meter reading was a part of Powercor’s business in 2002, was there a transmission to AMRS?
64 I address this second question on the basis that, contrary to the above finding, meter reading was a part of Powercor’s business in 2002.
65 In final submissions, AMRS submitted that there was no transmission because, under the licence, the Distribution Code and the Metering Code, Powercor retained the obligations to install and maintain meters and collect the data from them. AMRS itself has little or no discretion as to how the meters were read, and no control over, or interest in, Powercor’s business. Rather, so AMRS said, it simply employed staff to provide meter-reading services. In addition, AMRS noted a number of other facts said to show lack of transmission, including that: (1) no goodwill or other assets changed hands; (2) the 2002 contract and the 2004 contract were terminable in a variety of circumstances; and (3) under these contracts, Powercor retained the right to read meters itself at any time (i.e., the contracts conveyed no exclusive right or licence to AMRS with respect to the reading of Powercor’s meters).
66 In response, counsel for Mr Urquhart argued that “transmission” was a non-legal concept and did not depend upon privity or any formal legal transfer of rights between the parties. Moreover, he submitted that the Court should not give weight to the consideration as to whether or not Powercor technically retained rights or obligations with respect to meter reading, because to give weight to this consideration would not reflect commercial reality. He referred to North Western Health Care and Australian Rail Tram and Bus Industry Union v Torrens Transit Services Pty Ltd (2000) 105 FCR 88, which applied North Western Health Care. Both cases concerned, amongst other things, a transmission of the business of State government or department and, in any event, for the reasons appearing below, since PP Consultants and Gribbles, North Western Health Care can no longer be said reliably to state the law in this area.
67 For the reasons that follow, I accept the submissions of AMRS and reject those of Mr Urquhart.
68 Although the authors of the joint judgment in PP Consultants decided that case primarily on the basis of the characterisation test referred to earlier, holding that the pharmacy was not engaged in the banking business, they also added (at 656):
Moreover, the Bank has not disposed of any part of its business. All that has happened is that the Bank has changed the method by which it carried on its banking business in Byron Bay. Thus, no part of the Bank’s business has been acquired by the [pharmacy], whether as successor, assignee or transmittee.
In effect, the joint judgment in PP Consultants set out two tests for succession, assignment and transmission – a characterisation test (discussed above) and a disposal test. Both tests must be satisfied in order for the operation of the award (under s 149(1)(d)) or the certified agreement (under s 170MB(2)) to be attracted to the new employer.
69 As it happened, in his separate judgment, Callinan J (agreeing with the joint judgment in the result) considered the issue of disposal at greater length than in the joint judgment. After noting considerations that were not dissimilar to those relied on by AMRS, his Honour identified the question that he considered should be asked: see PP Consultants at 664. Adapted to this case, this question is, what ‘business’, which Powercor is said to have transmitted to AMRS, could AMRS sell or otherwise pass on to someone else? If this is a correct question to ask in connection with transmission, for the reasons stated below, the answer, as in PP Consultants, would be “no business”. Callinan J’s conclusion (at 665) that “[t]he business of the bank had not ‘passed’”; rather “[a] new form of business was created (by agreement) and was to be carried on by a new operator as an agent” might also summarise the effect of the 2002 contract. Under the 2002 contract, the business of Powercor did not pass (and was not transmitted). Rather, under the contract, AMRS was to carry on a new business of meter reading for Powercor.
70 The foregoing notwithstanding, I might still be in some doubt as to the correct analysis to be followed had PP Consultants not been succeeded in the High Court by Gribbles. The combined effect of these two decisions is, so it seems to me, to make the relevant state of the law reasonably clear with respect to provisions like ss 149(1)(d) and 170MB(2) of the Workplace Relations Act. In Gribbles, the High Court confirmed that the characterisation test (identifying the business or part of a business) and the disposal test (determining whether the business or part of a business so characterised was disposed of) are separate and distinct questions. Thus, in their joint judgment in Gribbles, Gleeson CJ, Hayne, Callinan and Heydon JJ stated (at 213):
[T]he need, when considering the application of s 149(1)(d) [is] to do two things. First, it is necessary to identify exactly what is meant in the context of the particular case, by ‘the business or part of the business’ of the former employer. Secondly, it is necessary to identify what part of that ‘business’ the former employer once had which is now enjoyed by the person allegedly bound by the award.
71 Before discussing Gribbles further, I would acknowledge that, as counsel for Mr Urquhart observed, Gribbles is distinguishable in at least one respect from this case because Gribbles, in contrast to this case, involved no direct transaction between the former employer and the new employer. That is, Gribbles involved the question whether there had been a “succession” by the new employer to the old employer’s business, and did not involve a question of “transmission”: see Gribbles at 203-204 and 208. This distinction does not, however, affect the critical reasoning in Gribbles, as the majority judgment shows.
72 The majority in Gribbles (at 212) acknowledged the distinction, by observing that the answer as to whether there has been an assignment, succession or transmission:
… will be provided by looking at some transaction between the two employers. Where there has been some transaction between them, it will be possible to see whether the former employer transferred the whole, or part, of its business to the new employer. But in other cases there may be no transaction between the former employer and the employer alleged to be its successor … Thus, the existence of some transaction between the two employers is not essential in order to show that one is the successor to the business of the other. Further, whether or not there was some transaction between the new employer and the former employer, there may be a real question about whether what the new employer enjoys is the whole or a part of the ‘business’ of the former employer.
73 In this case, unlike Gribbles, there was a direct transaction between the former and the new employers, as expressed in the 2002 contract (and, subsequently, transactions expressed in the 2003 contract and the 2004 contract). Accordingly, this (like PP Consultants) is one of the “many cases” where the answer is to be found by considering the transaction between the former and the new employers.
74 It is worth noting that, in Gribbles, the characterisation test was on the facts of the case easily satisfied in contrast to PP Consultants where it was not satisfied at all: see Gribbles at 214. The majority in Gribbles (at 214-15) thus focussed on the disposal test or, from the new employer’s perspective, the enjoyment test, whilst this aspect called for very much less attention in PP Consultants. Considered in this way, PP Consultants and Gribbles are complementary aspects of the overarching question – whether there has been a transmission, succession or assignment.
75 Assuming (contrary to the finding above) that the characterisation test is satisfied since meter reading constituted a part of the business of Powercor, the critical question is that presented in Gribbles – whether it can be properly said that Powercor disposed of a meter reading business, which is now enjoyed by AMRS.
76 In the present case, there is a degree of artificiality about this inquiry since it fails to take account of the fact that the former employer (Powercor) had entered into similar contracts with VMM and Marshmans immediately before entering into the 2002 contract with AMRS. In this context, if there was a transmission to AMRS, it must be assumed that either similar transmissions to VMM and Marshmans were limited to the duration of their respective contracts or, for some unapparent reason, the transactions between Powercor and VMM and Marshmans were relevantly different, with the consequence that there was no previous transmission. I do not stop to investigate these possibilities further because, in my view, there was no transmission between Powercor and AMRS. The critical question in Gribbles – whether it can be said that Powercor disposed of a meter reading business that is now enjoyed by AMRS – on the facts as disclosed in the evidence must be answered “no”.
77 The majority judgment in Gribbles shows that some aspects of the transaction between Powercor and AMRS are more relevant than others to the disposal/enjoyment test. In particular, it must be asked whether the new employer has acquired any of the tangible or intangible assets of the old employer: compare Gribbles at 212. In Gribbles, the majority found that, by the relevant transaction, the new employer did not come to enjoy either the tangible assets of the former employer (i.e., the former employer’s equipment) or the intangible assets of the former employer (i.e., the former employer’s goodwill): see Gribbles 214. Further, citing Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014, the majority also recognised that, while both former and new employers employed the same employees, “no employee is an asset in the employer’s balance sheet to be bought or sold”: Gribbles at 214. Accordingly, the majority concluded that the former employer had not disposed of any part of its business and the new employer was not, therefore, a successor to or of any part of the business of the former employer because “[a]t no time did [the new employer] enjoy any asset of the [former employer], tangible or intangible, which [the former employer] had used in the pursuit of its business activities”: see Gribbles at 204. This test is substantially identical to that proposed by Callinan J in PP Consultants (at 664) in that his Honour there asked whether there was anything for the new employer “to sell or otherwise pass on to someone else”.
78 The uncontroverted evidence was that Powercor had and retained ownership of the relevant tangible assets. Under the 2002 contract, the meters and certain equipment (such as the PDE devices, sealing tongs and seals, and magnetic logos) were and remained Powercor’s property, although AMRS’s employees used this equipment in reading Powercor’s meters. Thus, the employees of AMRS had the use of the PDE devices to receive information from and convey data to Powercor. AMRS was responsible for providing its employees with other items, which were not derived from Powercor. Furthermore, under the 2002 contract, AMRS undertook meter reading services for Powercor but not on the basis that AMRS had an exclusive right to provide these services. The contract was terminable in the circumstances set out (including where Powercor reasonably considered that the services of AMRS were no longer required having regard (amongst other things) to business needs – on one month’s notice or payment in lieu). Powercor was not prevented from undertaking a meter reading function during the currency of the contract if it so chose. (Different provisions were made under the 2003 and 2004 contracts for some of these matters, as for example termination, but none relevantly altered the relationship between Powercor and AMRS.) The licence to distribute was and continued to be held by Powercor. AMRS did not argue that it had acquired any intangible asset, such as goodwill; and, in any event, the evidence was clearly to the contrary.
79 The contractual regime that Powercor adopted with AMRS was consistent with the regulatory regime governing it as a licensed electricity distributor. The obligations that the licence and, thus, the Distribution Code and Metering Code imposed on Powercor, including with respect to meters and data collection (see [57]-[58]), stayed with Powercor. Powercor was subject to significant penalties (in the nature of fines and the revocation of the licence) in the event of non-compliance. See, in this regard, the Essential Services Commission Act 2001 (Vic), s 53; and Electricity Industry Act, ss 29(3), 16 and clause 3.4 of the licence.
80 It might be said that the High Court’s analysis of the operation of s 149(1)(d) and like provisions allows employers, in effect, to “contract out” of their obligations under awards and certified agreements with comparative ease. In PP Consultants (at 666) Callinan J sought to meet this objection, in the following way:
Whilst it may be accepted that a purpose of the provision is to prevent evasion of obligations by employers who do succeed to a business or part thereof, there is another policy consideration which bears on this case. The legislation, it may be inferred requires a common identity of a business or part thereof, into whosoever hands it falls, on the assumption that a successor will have the same and continuing capacity to meet the obligations arising under an award as the former operator of the business. No such assumption may safely be made about a different business.
81 This was a different approach to that of the Full Court of this Court in North Western Health Care in which R D Nicholson J stated that “[t]he policy objective of this provision is to make the power to settle industrial disputes effective by extending the instrument of settlement to ‘the ever changing body of persons within the area of such disturbances’”: North Western Health Care at 485; also 502 per Madgwick J.
82 These fundamental differences in perspective and approach have been the subject of scholarly discussions, which have proposed alternative analyses: see, for example, Trent D Sebbens, “‘Wake, O Wake’ – Transmission of Business Provisions in Outsourcing and Privatisation” (2003) 16 Australian Journal of Labour Law 133. This Court is, however, bound to follow PP Consultants and Gribbles, which provide a clear answer in this case.
83 In summary, by the transactions in question, Powercor did not convey ownership of any tangible or intangible assets to AMRS. It cannot be said that Powercor disposed of, or that AMRS enjoyed, any part of Powercor’s business, however characterised. AMRS is, therefore, not a transmittee of Powercor’s business or part thereof such as to attract the operation of the 1998 Award, the 1999 Agreement and the 2002 Agreement (see [4]) to the employment of Mr Urquhart by AMRS.
84 For the reasons stated, I would dismiss the application.
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I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. |
Associate:
Dated: 23 September 2008
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Counsel for the Applicant: |
Mr E White |
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Solicitor for the Applicant: |
Ryan Carlisle Thomas |
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Counsel for the Respondent: |
Mr S Wood with Mr M Felman |
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Solicitor for the Respondent: |
Gadens Lawyers |
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Date of Final Submissions: |
18 October 2007 |
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Date of Judgment: |
23 September 2008 |
