Andersen v Umbakumba Community Council

IN THE INDUSTRIAL RELATIONS COURT  )
  )
OF AUSTRALIA  )
  )
NORTHERN TERRITORY DISTRICT       )  No. DI 130 of 1994
  )
REGISTRY  )
  )
GENERAL DIVISION                  )  

BETWEEN:

PHILLIP MARTIN ANDERSEN

Applicant

AND:

UMBAKUMBA COMMUNITY
  COUNCIL

Respondent

REASONS FOR JUDGMENT

Coram: von Doussa J.
Place: Adelaide
Date : 26 September 1994

The applicant's employment with the respondent was terminated on 1 July 1994. He seeks relief from this Court under the provisions of subdivisions B and C of Division 3 of Part VIA of the Industrial Relations Act 1988 ("the Act") on the ground that the termination of his employment was harsh, unjust or unreasonable.

The respondent does not dispute the employment of the applicant as alleged in the application. However the respondent has contended that the applicant is excluded from the operation of the relevant provisions of the Act by Regulation 30B(1)(a) of the Industrial Relations Regulations. That Regulation is made under ss.170CC and 359 of the Act which provides:

"170CC. The regulations may exclude specified employees from the operation of specified provisions of this Division.  An exclusion has effect only if:

(a)it is permitted by paragraph 2, 4 or 5 of Article 2 of the Termination of Employment Convention; and

(b)in respect of an exclusion permitted by paragraph 2 of that Article - it is limited in such a way as to provide adequate safeguards as mentioned in paragraph 3 of that Article."

Regulation 30 relevantly reads:

"30B (1) For the purposes of section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act:

(a)subject to subregulation (2), employees engaged under a contract of employment for a specified period of time;

...

(2) Paragraph (1)(a) does not apply to an employee engaged under a contract of a kind referred to in that paragraph if a main purpose of the employee's engagement under a contract of that kind is to avoid the employer's obligations under Subdivision B, C, D or E of Division 3 of Part VIA of the Act."

It is not disputed that the exclusion prescribed by Reg. 30B(1)(a) is permitted by Article 2 of the Termination of Employment Convention, and that Reg. 30(2) provides adequate safeguards as mentioned in paragraph 3 of that Article.

When the respondent asserted in its response to the application that the applicant was not engaged under a contract of employment for a specified period of time, the Court directed that this question be determined as a preliminary issue. The question was argued on 8 September 1994. At the conclusion of the hearing the Court ruled that the applicant was not excluded by Reg.30B(1)(a), and indicated that reasons for that decision would be published later. Those reasons now follow.

The applicant was engaged by the respondent in the position of Essential Services Operator pursuant to a written Employment Agreement dated 11 August 1993.  The respondent Council has administrative functions in a remote Aboriginal community…