Garland v Original Ventures (Pacific) Pty Ltd

[1997] IRCA 26

DECISION NO:26/97

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY  NI 2060 of 1996

AMANDA JANE GARLAND
Applicant

ORIGINAL VENTURES (PACIFIC) PTY LIMITED
(A.C.N. 068 178 530)
Respondent

Coram:           Judicial Registrar Linkenbagh
Place:              Sydney
Date:               3 February 1997

REASONS FOR JUDGMENT

Delivered ex-tempore and revised from the transcript

This is an application pursuant to the provisions of section 170EA of the Workplace Relations Act 1996. The application was filed in the Australian Industrial Relations Commission on 23 August 1996 and related to the employment of the applicant by the respondent between 3 June 1996 and 19 August 1996. At the commencement of the hearing today, the respondent filed in Court a Notice of Motion seeking orders that the application be dismissed by reason of the provisions of regulations 30B(1)(aa) and/or 30B(1)(b) made under the Act. The respondent further seeks an order for costs and other orders as the Court might deem necessary.

The parties agreed that it was appropriate that the matter proceed by way of determination of the primary issue raised in the Notice of Motion as a separate issue and the Court agreed that that was the appropriate course in the circumstances.  The evidence before the Court is an affidavit of the applicant sworn today and some supplementary oral evidence.  There is an affidavit of Mr Jarjoura sworn on 8 January 1996 and that is the evidence for the respondent.

The facts are that the applicant was engaged in terms of a letter signed by her on 30 May 1996.  Her position is described as "Tour Manager of 1996 Home and Family Show".  The letter confirms that the employment was to start from 3 June 1996, that the term of employment was 26 weeks and that the salary was $1100 per week.  The letter confirms other details which are not relevant at this stage and confirms that the applicant's responsibilities were "as outlined and as further defined and agreed".  The letter is exhibit B.  There is a document entitled "Job Profile - Tour Manager" which is annexure A to the applicant's affidavit.  It confirms that the Tour Manager would be in charge of a tour by the show to various locations, that she would be responsible for all budgeted expenditure, permanent and temporary staff management, relations with all Shopping Mall management and the efficient bump-in layout and bump-out of the show.  The Job Profile concludes with the statement - "while this first tour is a contract employment for 4 weeks plus 20 tour weeks plus 2 weeks of wrap-up there is a strong potential for a permanent position as more tours are developed."

The applicant in her oral evidence gave some further detail of functions which she carried out in the course of her employment and those included liaising with retailers of the centres in which the show was displayed, interviewing staff and attending to their needs, travelling interstate, inspecting shoppping centres where the show was to be displayed, and being responsible for equipment and arrangements with freight companies.

The show is described to some extent in the document which is exhibit A.  It is essentially a travelling exhibition of the products of firms which advertise in the magazines “Family Circle” and “Better Homes and Gardens”.  It was to be displayed at various shopping centres in Sydney, Brisbane, the Gold Coast, the New South Wales Central Coast, Melbourne, Adelaide and Canberra.

The applicant in her oral evidence described herself as a "contract worker" and said this was the first show of this kind and that it was anticipated that if the 1996 show was a success there would be further shows in subsequent years.  She also told the Court that she had other work on contract which would engage her from January of 1997 for 6 months and that it therefore suited her to take up this role for the 26 weeks commencing on 3 June 1996.

The respondent argues that the applicant is excluded from making an application to this Court of this kind because of the provisions of regulations at 30B(1)(aa) and (b).  Those regulations are made pursuant to the legislative provision in section 170CC of the Act.  Subregulation 30B(1)(aa) excludes from the operation of the relevant provisions of the Act:

An employee engaged under a contract of employment for a specified period of time being a contract that was entered into after 16 November 1994 if the specified period is less than six months.

Mr Moses for the respondent argues that the specified period of the contract in this case was for less than six months in that it was for 26 weeks.  One might think at first blush that six months is half a year and 26 weeks is half a year and therefore six months and 26 weeks are an identical period.  Whilst that may be a commonsense practical approach to the interpretation of the relevant time periods, the Court is restrained in its interpretation of the regulation by the provisions of section 22 of the Acts Interpretation Act, 1901.

Section 22(1)(b) of that Act provides that in any Act, unless the contrary intention appears, "month" shall mean calendar month and subparagraph (g) of section 22(1) provides that "calendar month" means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month.  Applying that section to the facts of this case, a month from 3 June would expire at the last instant of 2 July 1996 and six months would expire at the last breath of 2 December 1996.  3 June 1996 was a Monday and 2 December 1996 was also a Monday.

The applicant was employed for a period of 26 weeks.  The Court must decide when 26 weeks in respect of employment which commenced on 3 June 1996 expired.  That involves consideration of the question of what is a week.  Is a week seven days or is a week in the context of an employment relationship the working week, whatever that might be in the particular case.  In this case the working week was taken to be Monday to Friday although there was no direct evidence of that.  Or is a week, as counsel for the applicant submitted, a period of seven days which commences at a particular time on a particular day and expires immediately before that time on the corresponding day of the next week, so that if the working week commenced at 9 am on a Monday it would expire at 8.59 am on the following Monday.

The Court notes that the applicant was to be paid on a weekly basis, in that the letter which is exhibit A expresses her remuneration in weekly terms.  If one counts 26 weeks on the calendar from 3 June 1996 the end date is Monday, 2 December 1996.  However, if one includes Monday, 3 June in the period then one cannot include Monday, 2 December in the period because that includes 27 Mondays in the period of 26 weeks.  The Court is of the view that a day commences, in the absence of any other indication, at midnight and a week similarly commences at midnight.  Twenty-six full weeks therefore from and counting Monday 3 June 1996 expires at the instant before midnight on Sunday, 1 December 1996.  That gives the result that based on the relevant dates, 26 weeks is a day less than six months calculated according to the formula provided in section 22 of the Acts Interpretation Act.  The Court has some reservations as to whether the framers of these regulations would have intended regulation 30B to operate in that way.  However, the Court is constrained by the provisions of the Acts Interpretation Act as to the calculation of the period of six months and that restricts any more liberal an interpretation to the legislation than might otherwise be the case.  The judges of this Court have said on more than one occasion that this is beneficial legislation and should be interpreted liberally.  The interpretation however must be within the confines of the legislative framework.

The effect of that then is that the specified period in the contract is 24 hours short of six months and the Court must therefore find that the contract was for a period of less than six months, as unreasonable and impracticable as that result may seem.

The respondent’s second argument is that the application is also excluded by reason of subregulation (b) which provides that an applicant is excluded from the operation of the relevant provisions if she is an employee engaged under a contract of employment for a specified task.

The question there to be determined is first of all, what is a task.  The Macquarie Dictionary defines the noun “task” firstly as “a definite piece of work assigned or falling to a person; a duty (2) any piece of work (3) a matter of considerable labour or difficulty”.  The Shorter Oxford Dictionary defines “task” as a noun firstly as “a piece of work imposed on or undertaken by a person; a fixed quantity of labour to be performed by a person; the work allotted as a duty to a specified person; a lesson to be learned or prepared; a piece of work or an exercise given to the subject of a psychological test or experiment”.  It further suggests as definitions:  “a thing that has to be done, especially one involving labour or difficulty”.

The Court has been referred to a decision of the Chief Justice of this Court in Drury v BHP Refractories Pty Limited  (1995) 62 IR 467 in which the Court said:

The contract to fall within subparagraph (b) must be a contract under which the employee is to carry out a specified task.

And His Houour said that the words “for a specified task” have nothing to do with the employer's task or project, and that:

That seems clear as a matter of grammar and it makes sense in policy terms.

In that case the applicant was employed as a labourer to work on a particular project of his employer but that situation is very different from that in the present case where the applicant was employed with a very detailed description of her duty to manage the project.  In judgment number 306/96 in Tyshkovsky -v- A1 Industries Pty Limited Judicial Registrar Ryan expressed the view, without giving any reasons and apparently seeing no need to give reasons, that painting a particular house in Cranbourne was "a clearly specified task".

Mr Little submitted to this Court that because the applicant's function involved the discharge of many responsibilities and duties it could not be said that her role could be described as a specified task within the meaning of regulation 30B.  The Court does not agree with that proposition.  Words in legislation must be given their ordinary meaning.  That is one of the primary rules of interpretation.  If Mr Little's submission is accepted then it would be difficult to call to mind any function which could be defined as a specified task.  Regulation 30B clearly means that it is intended to exclude from the unlawful termination provisions an employee who is engaged on a contract to perform a particular defined function or role or purpose.

In this case the applicant was engaged to be the Tour Manager of the show.  That was the task which she undertook and the Court has no difficulty in concluding that on the facts of this case the applicant's engagement was under a contract of employment for a specified task.  The application is therefore excluded by the provisions of regulation 30B(b) as well as being excluded for what can only be described as a technicality by the provisions of regulation 30B(1)(aa) and for all of those reasons the application is dismissed.

I certify that this and the preceding 5 pages are a true copy of the Reasons for Judgment of Judicial Registrar Linkenbagh

Associate:       Renee Cauchi

Date:                12 February 1997

Counsel for the Applicant:               Mr P Little
Solicitors for the Applicant:            Crichton-Browne Crossley

Counsel for the Responent:             Mr A Moses
Representative for the Respondent:           Ms R Metledge,
  Employees Federation of New South Wales

CATCHWORDS

INDUSTRIAL LAW  - TERMINATION OF EMPLOYMENT -UNLAWFUL TERMINATION - CONTRACT FOR PERIOD LESS THAN SIX MONTHS - CONTRACT FOR SPECIFIED TASK

Workplace Relations Act 1988, ss 170 CC  EA.
Acts Interpretation Act, 1901 Section 22(1) (b) and (g)  .
Industrial relations Regulations 30B(1) (aa) and (b).

Drury v BHP Refractories Pty Limited Wilcox CJ (1995) 62 IR 467
Tyshkovsky -v- A1 Industries Pty Limited Ryan JR (unreported No 306/96, 25 June 1996)

AMANDA JANE GARLAND -v- ORIGINAL VENTURES (PACIFIC) PTY LIMITED( A.C.N. 068 178 530)

No. NI 2060 of 1996

CORAM:     LINKENBAGH JR
PLACE:       SYDNEY
DATE:          3 FEBRUARY 1997

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY  NI 2060 of 1996

AMANDA JANE GARLAND
Applicant

ORIGINAL VENTURES (PACIFIC) PTY LIMITED
(A.C.N. 068 178 530)
Respondent

Coram:         Judicial Registrar Linkenbagh
Place:  Sydney
Date:             3 February 1997

MINUTES OF ORDERS

THE COURT ORDERS THAT:

The application be dismissed.

Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules