Hamzy v Tricon International Restaurants

Link copied
Case Copied 39 min read

FEDERAL COURT OF AUSTRALIA

Hamzy v Tricon International Restaurants trading as KFC [2001] FCA 1589

INDUSTRIAL LAW – Termination of employment – Regulation excluding certain casual employees from benefit of termination provisions – Validity – Meaning of “employees engaged on a casual basis for a short period” – Whether, upon its proper construction, regulation excludes casual employees not falling within that category – Whether regulation is supported by statutory provision regarding employees in relation to whom the operation of the termination of employment provisions would cause “substantial problems because of their particular conditions of employment” – Severability of invalid provision.

PRACTICE AND PROCEDURE – Requirements in respect of questions of law referred to Court by Australian Industrial Relations commission

JURISDICTION – Jurisdiction to make declarations concerning invalidity of Commonwealth regulations.

Workplace Relations Act 1996 ss 46, 170CA, 170CC, 412
Workplace Relations Regulations reg 30B
Acts Interpretation Act 1901 s 46
Judiciary Act 1903 s 39B(1A)

OMAR HAMZY By his tutor HAMZY HAMZY v TRICON INTERNATIONAL RESTAURANTS trading as KFC and MINISTER FOR EMPLOYMENT, WORKPLACE RELATIONS & SMALL BUSINESS

N 165 of 2001

WILCOX, MARSHALL and KATZ JJ
SYDNEY
16 NOVEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 165 of 2001

BETWEEN:

OMAR HAMZY by his tutor HAMZY HAMZY
APPLICANT

AND:

TRICON INTERNATIONAL RESTAURANTS trading as KFC
FIRST RESPONDENT

MINISTER FOR EMPLOYMENT, WORKPLACE RELATIONS & SMALL BUSINESS
SECOND RESPONDENT

JUDGES:

WILCOX, MARSHALL and KATZ JJ

DATE OF ORDER:

16 NOVEMBER 2001

WHERE MADE:

SYDNEY

THE COURT DECLARES THAT:

1.Neither regulation 30B(1)(d) nor regulation 30B(3) of the Workplace Relations Regulations is authorised by s 170CC of the Workplace Relations Act 1996 and both provisions are invalid.

AND THE COURT ORDERS THAT:

2.Each of the questions of law referred to the Court by the Australian Industrial Relations Commission on 15 February 2001 be marked: “Inappropriate to answer”.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 165 of 2001

BETWEEN:

OMAR HAMZY by his tutor HAMZY HAMZY
APPLICANT

AND:

TRICON INTERNATIONAL RESTAURANTS trading as KFC
FIRST RESPONDENT

MINISTER FOR EMPLOYMENT, WORKPLACE RELATIONS & SMALL BUSINESS
SECOND RESPONDENT

JUDGES:

WILCOX, MARSHALL and KATZ JJ

DATE:

16 NOVEMBER 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE COURT:

  1. The issue we have to determine is the validity of certain provisions in reg 30B of the Workplace Relations Regulations.  Regulation 30B excludes some kinds of employees from the operation of the termination of employment provisions contained in the Workplace Relations Act 1996.

    The legislative scheme

  2. Division 3 of Part VIA of the Workplace Relations Act concerns termination of employment. Subdivision A of the Division commences with s 170CA which sets out the “principal object” of the Division:

    “(a)to establish procedures for conciliation in relation to certain matters relating to the termination or proposed termination of an employee’s employment in certain circumstances; and

    (b)to provide, if the conciliation process is…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Hamzy v Tricon International Restaurants and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2001] FCA 1589
Decision Date

CaseChat Overview and Summary

In the case of Hamzy v Tricon International Restaurants, the applicant, Omar Hamzy, sought relief in respect of the termination of his employment against Tricon International Restaurants, his employer. The crux of the dispute was whether certain provisions of the Workplace Relations Regulations, specifically reg 30B, which excludes certain casual employees from the benefits of termination provisions, were valid. Hamzy argued that these provisions were invalid, and the Australian Industrial Relations Commission referred questions of law to the court for determination.

The legal issues that arose for the court's decision were primarily focused on the validity of reg 30B and its severability from the rest of the regulation if found invalid. The court had to consider whether the regulation correctly interpreted the statutory provision and whether the invalidity of a part of the regulation rendered the entire regulation unenforceable.

The court found that reg 30B(3) was invalid as it did not align with the statutory framework provided by the Workplace Relations Act. The court further reasoned that reg 30B(1)(d), though potentially valid on its own, became invalid due to its connection with the invalid reg 30B(3). The court cited the Acts Interpretation Act 1901 and related legal principles to conclude that the invalid part of the regulation could not be severed from the valid part without altering the intended effect of the regulation. This reasoning aligns with the principle that associated provisions form an entire law, and severability is not permitted if it changes the regulation's intended operation.

Ultimately, the court determined that the questions of law posed by the Australian Industrial Relations Commission were inappropriate to answer, given the findings on the invalidity and inseparability of the regulation.

Orders

Orders of the court

2. Each of the questions of law referred to the Court by the Australian Industrial Relations Commission on 15 February 2001 be marked: “Inappropriate to answer”.

Background

Background to the litigation

Division 1 of Part 5A of the Workplace Relations Regulations concerns termination of employment. It contains reg 30B which relevantly provides:“(1) For subsection 170CC(1) of the Act, the following kinds of employees are excluded from the operation of Subdivisions B, C, D, E and F of Division 3 of Part VIA of the Act:(a)an employee engaged under a contract of employment for a specified period of time;(b)an employee engaged under a contract of employment for a specified task;(c)an employee serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period, as the case may be, is determined in advance and, either:(i)the period, or the maximum duration, is 3 months or less; or(ii)the period, or the maximum duration:(A)is more than 3 months; and(B)is reasonable, having regard to the nature and circumstances of the employment;(d)a casual employee engaged for a short period, within the meaning of subregulation (3);(e) …(f) …(2)…(3)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 12 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.(4)…”The factual background The applicant, Omar Hamzy, was born in June 1984. In about September 1999, when he was in Year 10 at school, Mr Hamzy obtained employment at a Kentucky Fried Chicken restaurant. His employer was the first respondent, Tricon International Restaurants trading as KFC (“Tricon”). Mr Hamzy worked for three or four hours on each of two or three nights per week, work being allocated to him according to a roster that varied from week to week. Sometimes he would also work a non-rostered shift, to fill in for an employee who became unavailable at short notice. It is agreed between the parties that Mr Hamzy worked on a “regular and systematic basis”, to use the language of reg 30B(3)(a) of the Regulations. However, he was not engaged by Tricon during a period of at least 12 months; his employment was terminated in April 2000. During his period of employment, Mr Hamzy was paid in accordance with cl 5.3 of the KFC National Enterprise Agreement 1998. That clause is concerned with entitlements of “casual employees”.The Commission proceedings On 3 May 2000 Mr Hamzy lodged with the Commission an application for relief in respect of termination of employment. The application was based on s 170CE(1), which is contained in Subdivision B of Division 3 of Part VIA of the Act, and s 170CK, which is in Subdivision C. Mr Hamzy sought reinstatement and compensation for lost remuneration. The application was assigned to Commissioner Wilks. On 6 November 2000 the Commissioner heard argument as to whether Subdivisions B and C applied to Mr Hamzy. Tricon contended they did not; Mr Hamzy was excluded by reg 30B(1)(c), read with reg 30B(3) of the Regulations. Counsel for Mr Hamzy argued these provisions were invalid.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In arguing that job creation is relevant to the application of s 170CC(1)(e) of the Act to reg 30B, counsel for the Minister drew attention to the first “principal object” of the Workplace Relations Act, as stated in s 3 of the Act. That object includes “encouraging the pursuit of high employment”. No doubt that is an important object of the Act. However, s 3 also refers to “assisting in giving effect to Australia’s international obligations in relation to labour standards” (para (k)). And s 170CA(1)(e) makes it a “principal object” of Division 3 of Part VIA of the Act, by the procedures, remedies and sanctions provided by the Division, “to assist in giving effect to the Termination of Employment Convention”. Although that convention contains a provision upon which s 170CC(1)(e) is evidently based (Article 2.5) it is in more restricted terms.(v)Conclusions about s 170CC(1)(e) It is not necessary to explore the limits of the term “substantial problems” in s 170CC(1)(e) of the Workplace Relations Act. Nor is it necessary to consider whether the term “conditions of employment”, in sub-para (i), is limited to the terms and conditions of the employment contract (as Mr Rogers contended) or includes the circumstances of employment (as Mr Robertson suggested). Whatever the position in relation to those matters, the Minister’s argument in relation to s 170CC(1)(e) lacks a proper factual foundation. It must be rejected.The severability of reg 30B(3) The above reasoning compels the conclusion that reg 30B(3) is invalid. What about reg 30B(1)(d)? We have indicated that a regulation framed in terms of the statutory formula could validly have been made. Consequently, if reg 30B(1)(d) had stopped at the comma, in our opinion it would have been valid. However, reg 30B(1)(d) did not stop at that point; the words “within the meaning of subregulation (3)” were added. Those additional words operated as a qualification upon the preceding words. Section 46 of the Acts Interpretation Act 1901, relevantly provides:“(1)Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then:(a)…(b)any instrument so made, granted or issued shall be read and construed subject to the Act under which it was made, granted or issued, and so as not to exceed the power of that authority, to the intent that where any such instrument would, but for this section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power.” However s 46(1)(b) cannot operate to save a remaining provision which would then have an operation or effect different from what it would have had before severance. The position of s 46(1)(b) in that regard is similar to that arising under s 15A of the Acts Interpretation Act, dealing with constitutionally invalid legislation. Dixon J explained that position in Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 371:“… in applying s. 15A and s. 46(b) the courts have insisted that a provision, though in itself unobjectionable constitutionally, must share the fate of so much of the statute, regulation or order as is found to be invalid, once it appears that the rejection of the invalid part would mean that the otherwise unobjectionable provision would operate differently upon the persons, matters or things falling under it or in some other way would produce a different result. This consideration supplies a strong logical ground for holding provisions to be inseverable, whether the prima-facie presumption be in favour or against severability. It is important where there is no statutory clause like s. 15A and it is important in using s. 15A. For the inference in such a case is strong that provisions so associated form an entire law and that no legislative intention existed that anything less should operate as a law.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.