Dear v Jarvis

[1996] IRCA 245

DECISION NO:  245/96

CATCHWORDS

INDUSTRIAL LAW -  TERMINATION OF EMPLOYMENT - alleged UNLAWFUL TERMINATION - truck driver - whether CASUAL EMPLOYMENT

Industrial Relations Act 1988 ss 170 CC, 170EA
Industrial Relations Regulations, Reg. 30B(1), 30B(3)

Michael Simpson v Glaman Engineering, WCR 164
Australian Meat Industry Employees Union v Sunland Enterprises Pty Ltd (trading as Sunland Wholesale Meats) (1988) 24 IR 467
Ryde-Eastwood Leagues Club Limited v Taylor, No. IRC 1475 of 1994, 10 October 1994
Cue (1909) IDB 352
Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545
Hill v Begg (1908) 2 KB 802
O'Kelly v Trusthouse Forte P.L.C. (1983) ICR 728

McGee v Peter Barron trading as Road Trains West Pty Ltd, unreported, Boon JR, Industrial Relations Court of Australia No. 146/95, 12 April 1995

Peter John DEAR v John P JARVIS -  WI 2249 of 1995

Before:                    BOON JR

Place:            PERTH

Date:                        24 APRIL 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY     

WI 2249 of 1995

B E T W E E N:  

Peter John DEAR
           Applicant

A N D:  

John P JARVIS
           Respondent

MINUTE OF ORDERS

24 APRIL 1996            BOON JR

THE COURT ORDERS THAT:

1. The application be dismissed.

   NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations   Court Rules

   IN THE INDUSTRIAL RELATIONS COURT
   OF AUSTRALIA
   WESTERN AUSTRALIA DISTRICT REGISTRY

   WI 2249 of 1995

   B E T W E E N:  

   Peter John DEAR
              Applicant

   A N D:  

   John P JARVIS
              Respondent

   REASONS FOR DECISION

   24 APRIL 1996  BOON JR

2. This is an application under Section 170EA of the Industrial Relations Act 1988. The applicant is seeking compensation in respect of the alleged unlawful termination of his employment by the respondent. The applicant alleges that there was no valid reason for the termination of his employment and says further that he was not given an opportunity to respond to allegations against his conduct or performance. The respondent says that this Court has no jurisdiction to hear the application on the basis that the applicant was at all material times a sub-contractor to the respondent and not an employee, or, in the alternative, that the applicant was a casual employee for a short period within the meaning of Regulation 30B of the Industrial Relations Regulations and is therefore excluded from the relevant provisions of the Industrial Relations Act.

1. The respondent, Mr John Jarvis, conducts a business as a trucking subcontractor.  Mr Jarvis owns and operates three trucks and his primary client is BGC Limited.  The applicant, Mr Peter Dear, is a truck driver of many years' experience.  Mr Dear had worked for Mr Jarvis on a regular basis up to late 1994.  For some periods from January 1995 to October 1995 he worked for Mr Jarvis on a very casual basis in that Mr Jarvis would occasionally ring him to see if he was available to drive his truck.

2. The evidence was that Mr Jarvis employed a regular driver who was injured in a work related accident in or about June of 1995.  Mr Jarvis then employed his own son to drive the truck for some months.  Mr Jarvis' son left for Kalgoorlie on or around early October 1995.  Mr Jarvis contacted Mr Dear and arranged for Mr Dear to take over the driving of his truck.  Although there is some dispute as to what was agreed between the two men, it is common ground that Mr Dear was to drive the truck only as needed by BGC Limited.  It was clearly envisaged that there would be some days when Mr Dear would work only for a few hours or not at all because BGC Limited would not have any work available for the truck. Mr Dear would not be paid for the time when there was no work for the truck.  The arrangement was that Mr Dear would be paid a percentage of the gross takings of the truck.  There was no evidence that there was any discussion about holiday pay or sick leave and it is reasonable to infer, in my view, that the intention was that Mr Dear would not be paid for any leave as his rate of pay was linked directly to the earnings of the truck when he was driving it.  There was no evidence before me in relation to any award which may have applied to Mr Dear.

3. Mr Dear's evidence was that prior to accepting the position with Mr Jarvis, he had been offered a permanent job in the northwest of Western Australia.  He did not want to take the job with Mr Jarvis unless he was satisfied that it was permanent.  His evidence was that he asked Mr Jarvis if the job was to be permanent and Mr Jarvis said that it would be.  Mr Dear acknowledged, however, that Mr Jarvis said that the employment was permanent, provided the truck was working.  He also acknowledged that Mr Jarvis said that there was no guarantee of work. It was agreed that Mr Dear was to pay his own superannuation.   Further, he said it was agreed that Mr Jarvis would deduct 25% of his wages for payment of tax.  Mr Dear said that he asked Mr Jarvis if he could seek work with other people if there was no work available for Mr Jarvis' truck.  Mr Jarvis had replied that Mr Dear could work for others provided it didn't interfere with his main client, BGC Limited.  Mr Dear's evidence was that Mr Jarvis had never used the word "casual" in his conversation with him and if he had he wouldn't have been interested in the job as he had been offered another job which was permanent.  Mr Dear said that he was only to be paid after Mr Jarvis had received the cheque for each trip worked by Mr Dear.  There was no set amount of payment each week.

4. Mr Jarvis gave evidence that the arrangement was that Mr Dear was to drive for him on a contract basis and take a percentage of the gross earnings of the truck.  According to Mr Jarvis the arrangement was that Mr Dear would do whatever work there was for the BGC Quarries, which sometimes amounted to a full day's work and sometimes not.  If there was no full day to be worked, Mr Dear wouldn't be paid.  Mr Jarvis further said that if the truck broke down on the job, Mr Dear would be paid $10 an hour while the truck was being repaired up to a maximum of eight hours.  The intention was that the relationship between the two men was to last as long as the job was there or if Mr Dear decided to leave.  Mr Jarvis said as long as there was work with BGC, Mr Dear could work.  There was no written contract.  Mr Jarvis said that he did not use the word "permanent" as there was no such thing as permanent employment with him.  Mr Jarvis indicated that Mr Dear was a subcontractor to him.  Mr Jarvis said that he himself was on a goodwill basis with BGC and Mr Dear was on the same basis with Mr Jarvis.  Mr Jarvis acknowledged that he may have mentioned that Mr Dear could continue to work even after his injured worker returned to work as Mr Jarvis himself was considering retiring.  In that sense there was a possibility of permanent employment for Mr Dear.

5. Mr Jarvis said that in relation to BGC Quarries, it was clear that Mr Dear would only be required to work as required by BGC and that "you take your luck and there might not be anything".  The work was to be full time on the condition that he work only when there was work available.  Mr Jarvis said that he did mention the word "casual" to Mr Dear because he himself was on a casual basis with the quarry in that there was nothing permanently arranged with BGC.  When asked during cross-examination whether he saw the terms "subcontractor" and "casual" as describing the same thing, he replied in the affirmative.  Mr Jarvis said that he saw the job as being casual although it could have been full time, depending on the work available.

6. The Court also heard evidence from Gary Handley, who was employed by BGC Quarries as a dispatch clerk on the weighbridge.  His evidence was that BGC used subcontractors as "the workload is always varying".  Mr Handley's evidence was that there was not enough work in the winter months to employ people full time.  His job was to decide how many trucks BGC needed on the following day.  He would let drivers know in the evening if they were not needed to work on the following day.

THE QUESTION OF "CASUAL EMPLOYMENT"

1. Section 170CC of the Act specifies that the regulations may exclude certain specified employees from the operation of the provisions of Division 3 of Part VIA of the Act. Regulation 30B of the Industrial Relations Regulations states in part:

   "30B(1)  [Excluded employees]

   Subject to subregulation (2), 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:  ....

   (d)A casual employee engaged for a short period within the meaning     of subregulation (3) ....

   30B(3)[Casual employees engaged for a short period]

   For the purposes of paragraph (1)(d) a casual employee is taken to be engaged for a short period unless:

   (a)the employee is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least six months; and

   (b)the employee has, or but for a decision by the employer to terminate the employee's employment, would have had, a reasonable expectation of continuing employment by the employer."

2. If this Court finds that the applicant was a casual employee engaged for a short period, then the unlawful termination provisions of the Act do not apply to Mr Dear and that would be the end of the matter. The phrase "casual employee" is not defined in either the Industrial Relations Act or the Industrial Relations Regulations. The meaning of the word "casual" in relation to employees has been considered in a number of cases relating to various statutes and awards. Counsel for the applicant referred this Court to the case of Michael Simpson v Glaman Engineering, WCR 164 in which the Workers' Compensation Board of Western Australia said at page 6168: "The term 'casual worker' is not defined, but we take the view that it means work that is not of a regular nature." I do not consider that that particular case assists this Court in interpreting the meaning of the word "casual" in relation to the provisions of the Industrial Relations Act and Regulations. This is because the Simpson case was decided in the context of the Western Australian Workers' Compensation Act, and also because Regulation 30B(3) of the Industrial Relations Regulations makes it clear that for the purposes of Industrial Relations Regulations, a person may be employed on a regular and systematic basis and still be a casual employee.

3. It is my view that the only consistent approach which may be gleaned from the various cases dealing with the matter is that each case must be decided on its own facts.  In the case of Australian Meat Industry Employees Union v Sunland Enterprises Pty Ltd (trading as Sunland Wholesale Meats) (1988) 24 IR 467, Gray J said at page 473:

   "The term 'casual employee' does not have a recognised legal meaning.  This is apparent from cases such as Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545 and Linehan v Northwest Exports Pty Ltd (1981) 47 FLR 49, especially at 57-61. In these circumstances, the issue of the terms under which the actual casual employees were engaged becomes one of fact".

4. The Industrial Relations Commission of New South Wales has held that the expression "casual employment" is a colloquial and ill-defined term, and whether casual employees attract the jurisdiction of the Commission is therefore not a question of employment status, but a question relating to the nature of the casual employment in each situation, see Ryde-Eastwood Leagues Club Limited v Taylor, No. IRC 1475 of 1994, 10 October 1994.

5. As I have already said, it is clear from the definition of "casual employee for a short period" in Regulation 30B that workers may be casual employees although engaged regularly under successive contracts of employment.  This is common in areas of employment where there are periods during which no work is available, see Cue's case (1909) IDB 352; Doyle v Sydney Steel Co Ltd; Hill v Begg (1908) 2 KB 802 and O'Kelly v Trusthouse Forte PLC (1983) ICR 728. As I have indicated elsewhere (McGee v Peter Barron trading as Road Trains West Pty Ltd, unreported, Industrial Relations Court of Australia No. 146/95) one of the tests of whether employment is casual is whether there is an entitlement on the part of the employee to demand work of the employer and a corresponding obligation on the part of employer to provide work to the employee.

6. It is my view that the circumstances of the present case point to the existence of a casual employment relationship within the meaning of Regulation 30B.  There was no obligation on the part of Mr Jarvis to provide work on any particular day.  The question of whether or not Mr Dear was to work on any particular day was contingent upon there being work supplied by the main client of Mr Jarvis, BGC Limited.  There appears to have been no provision for holiday or sick leave and Mr Dear would only be paid for the work he carried out.

7. Although I have no doubt that Mr Dear had a reasonable expectation of continuing to work for Mr Jarvis on a regular basis in the future, and would in all likelihood have done so if his employment had not been terminated by Mr Jarvis, that does not make him a permanent full time employee.

8. As Mr Dear worked for Mr Jarvis only between 2 October 1995 and 6 October 1995 I consider that he is a casual employee for a short period within the meaning of those words in 30B(3) and is therefore an excluded employee.  In these circumstances, the application is dismissed.

   I certify that this and the preceding seven (7) pages
   are a true copy of the reasons for decision of
   Judicial Registrar Boon as recorded in the transcript
   and revised by the Judicial Registrar

   Associate:
   Dated:

   APPEARANCES

   Counsel appearing for the applicant:       Mr M Cuomo

   Representative for the applicant:             The Transport Workers' Union of
     Australia (WA Branch)

   Counsel appearing for the respondent:    Mr I Mossenson
     Mossensons

   Dates of Hearing:  19 February 1996 & 15 April 1996

   Date of Judgment:  24 April 1996