Jesse Savill and Stephen Harding v S&DH Enterprises Pty Ltd

[2020] FWC 7109

[2020] FWC 7109

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Jesse Savill and Stephen Harding
v
S&DH Enterprises Pty Ltd
(U2020/3991 and U2020/4017)

COMMISSIONER JOHNS SYDNEY, 31 DECEMBER 2020

Application for an unfair dismissal remedy – jurisdictional objection – employed for a “specific task”

BACKGROUND

[1] Jesse Savill and Stephen Harding (collectively, the Applicants) have both applied under s.394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy with respect to the termination of their employment by S&DH Enterprise Pty Ltd (S&DH/Respondent).

[2] S&DH objects to the Applicants’ applications asserting that they are both excluded from making an unfair dismissal application because they were both employed under a contract of employment to perform a specified task. S&DH relies upon the operation of s.386(2)(a) of the Fair Work Act 2009 (FW Act).

[3] The applications were made within the period required in subsection 394(2) of the Act. The Applicants’ are persons protected from unfair dismissal as defined in s.382 of the Act. S&DH is not a small business employer. Before me, S&DH expressly stated that it did not contend that the dismissals were to be characterised as genuine redundancies. 1 No other jurisdictional issues arise.

[4] Consequently, the matters proceeded by way of a hearing only in relation to the “specified task” jurisdictional objection. As both applications involved the same issue to be determined, they were joined and heard concurrently.

[5] The Applicants were represented by Mr Adam Jacka from the CEPU, Electrical Trades Union of Australia. S&DH was represented by Ms Christa Lenard, Partner, Kingston Reid Lawyers. I granted the Respondent permission to be represented on the basis that I was satisfied that it would enable the matter to be dealt with more efficiently taking into account its complexity. Fairness as between the parties also influenced my decision to grant permission.

[6] Evidence was received from:

(a) Jesse Savill, Applicant;

(b) Stephen Harding, Applicant;

(c) Michael Harrison, a Supervisor with Southern Cross Electrical Engineering Pty Ltd (SCEE); and

(d) Richard Karam, Project Manager with HeyDay Pty Ltd (a wholly owned subsidiary of SCEE).

[7] None of the witnesses were required for cross-examination. 2

[8] On 11 November 2020 and 12 November 2020, the Respondent and the Applicant’s respectively filed Supplementary Final Submissions.

FACTS

[9] I make the following findings of fact:

(a) S&DH is a wholly owned subsidiary of Southern Cross Electrical Engineering Pty Ltd. It is in the business of installing electrical and data communication systems in the construction industry.

(b) In 2018, the New South Wales Government contracted with a LSB Joint Venture between CBP, Dragados and Samsung C&T (JV) to construct twin tunnels from the existing M5 East at Kingsgrove to a new interchange at St Peters, increasing the corridor capacity and east‐west corridor access between the Sydney CBD, Port Botany and Sydney Airport precincts and the south-west growth areas (Project). Heyday Pty Ltd (Heyday), a wholly owned subsidiary of SCEE, was contracted by the JV to complete electrical works on the Project (Electrical Works Contract).

(c) The work it was required to complete under the Electrical Works Contract was to:

i. supply and install cable supports and pathways to facilitate high voltage and low voltage electrical cabling;

ii. install tunnel and emergency lighting; and

iii. to install cable communications, closed circuit TV and other specialist control systems relevant to allow the safe and efficient passage of vehicle traffic.

(d) Work commenced on the Project in November 2018. The Project was initially expected to be completed by September 2019.

(e) The Applicants’ employment can be summarised as follows:

Mr Savill	Mr Harding
Commenced employment	13 February 2019	22 March 2019
Position	Electrician	Electrician
Project	Westconnex M5 Project	Westconnex M5 Project
Written contract	Yes	Yes
Ceased employment	16 March 2020	13 March 2020
Commenced UFD application	1 April 2020	2 April 2020

(f) Each of the Applicants received a letter of offer with attached contractual documents. The letter of offer stated,

“We are pleased to offer you a new contract of employment in the position of Electrician with [S&DH] … to work on the SCEE Westconnex (Project) under the following conditions.

The employment of the Project will end upon the completion of the task for which you are employed on the Project, unless employment is terminated earlier.”

(g) The General Conditions Schedule attached to the letter of offer referred to “Your Role: Electrician”.

(h) The General Terms and Conditions of Employment provide for various terms, including the following:

•  “From time to time you may be required to temporarily perform duties other than those normally undertaken.”

•  “Your employment may be terminated by the Company when you giving notice in accordance with the following scale.

Period of Continuous Service/Types of Employment	Period of Notice
Casual employee	1 day
First 12 months	1 week
1 year and up to completion of 3 years	2 weeks
3 years and up to the completion of 5 years	3 weeks
5 years and over	4 weeks

(i) On the commencement of their employment where were around 120 employees engaged by Respondent on the Project. Most were electricians, in addition to Technical Assistants (TAs). The number of workers on the Project increased at times.

(j) During their employment the Applicants had work allocated to them by Supervisors. They largely performed a wide range of electrical work.

(k) However, from time to time they also performed the non-electrical work of TAs, 3 cleaning duties, the duties of Health and Safety Representatives and (in the case of Mr Harding), office duties.

(l) By March 2020, the Project was in the final stages of completion. There remained a few tasks that were isolated to discrete areas within four sections of the tunnel. The Respondent began demobilising. 4 Between 13 March and 8 April 2020, the Respondent demobilised 521 workers as follows:

i. On 13 March 2020, 281 workers were demobilised;

ii. On 27 March 2020, 143 workers were demobilised;

iii. On 8 April 2020, 97 workers were demobilised; and

iv. All SCEE employees were demobilised from the Project by 4 May 2020.

(m) On the cessation of their employment the Applicants had completed 1 year (but less than 3 years) of service. On termination the Applicants were paid 2 weeks’ pay in lieu of notice.

(n) Had the Applicants worked until the end of the demobilisation period (4 May 2020) they would have received a further 5 weeks’ pay each.

LEGISLATION

[10] To determine S&DH’s jurisdictional objection, it is necessary to determine whether the Applicants were dismissed. Section 386 of the Act relevantly states:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) The person’s employment with his or her employer has been terminated on the employer’s initiative

…

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

…

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[11] The effect of s. 386(2)(a) is to exclude an employee from making an application for an unfair dismissal remedy in circumstances where the employee was employed under a contract for specified period of time, a specified season or a specified task, where the employment is terminated at the end of the specified time or season or on completion of the task. While termination of employment in such cases may be initiated by the employer, it is excluded from the unfair dismissal provisions under Part 3-2 of the Act, notwithstanding that that the employee whose employment is terminated may be a person who would otherwise be protected from unfair dismissal.

[12] Conversely, an employee employed under a contract of a kind that is for a specified period, season or task is not excluded from making an unfair dismissal application in circumstances where employment is terminated for a reason other than at the end of the period or season or the completion of the task. Further, there is an exception to this exclusion from the unfair dismissal provisions of the Act in circumstances where the Commission is satisfied that a substantial purpose of the employment of a person under a contract for a specified period, season or task, is or was to avoid the employer’s obligations under those provisions.

[13] In the present matter, S&DH confined its jurisdictional objection to having employed the Applicants for a specified task and their employment having ended by reason of the completion of that task.

AUTHORITIES

[14] A number of authorities set out the approach to determining whether a contract of employment is for a specified task.

[15] The starting point for that analysis is usually considered to be the judgment of Chief Justice Wilcox in Drury v BHP Refractories Pty Ltd. 5The relevant facts were as follows:

(a) Mr Drury was a refractory bricklayer’s labourer.

(b) On each occasion of his work Mr Drury “was employed by the company without any specification of the period of employment, but on the assumption that his employment would be terminated when the job was completed. This in fact occurred.”

(c) In early March 1994 Mr Drury was employed on a job estimated to go for between 12 and 16 weeks.

(d) The job application form opened “I hereby make application for employment the labourer with AIR Installation Services at the Construction Site.” The site identified in the heading was “the Sydney Mini Mill Project Construction Site.”

(e) The form did not specify, or provide for the Mr Drury to specify, the duration of the employment.

(f) After commencing employment, a dispute arose between Mr Drury and his employer about an entitlement to be paid in respect of Public Holidays. Three weeks later Mr Drury was issued with a written warning. The dispute continued and ultimately Mr Drury was dismissed.

(g) Mr Drury made an application for unfair dismissal under the Industrial Relations Act 1988. The relevant regulations excluded employees “engaged in a contract of employment for a specified task” from making an unfair dismissal claim.

[16] Relevantly, his Honour Chief Justice Wilcox:

(a) noted that both the employer “and Mr Drury assume, without saying, that the contract of employment would run for the duration of the Rooty Hill job and then terminate.”

(b) observed that the Respondent argued that the Rooty Hill job was a ‘specified task’ for the purposes of the regulation.

(c) held that the exclusion does not apply whenever an employer employs a person to work on a particular project, whatever its size and duration. His Honour further held that:

“The words “for a specified task” qualify the words “contract of employment”. The contract of employment must be for a specified task; it must be a contract under which the employee is to carry out a specified task. The words “for a specified task” have nothing to do with the employer’s task, or project. This seems clear as a matter of grammar and it makes sense in policy terms.” 6

(d) also observed that it is understandable,

“that the provisions [relating to unfair dismissal] should not be available to people who undertake only a specified task. Especially after the task is completed, it would be anomalous to restrict the employer’s right to terminate the contract of employment. Bearing in mind that many projects undertaken by employers continue many years, while employees come and go, it would be equally anomalous to exclude relief [from unfair dismissal] simply because an employee was engaged in connection with a particular project.” 7

[17] Because Mr Drury was employed for a particular project, it was not properly considered a specified task. The jurisdictional objection was dismissed. The substantive unfair dismissal claim was found in Mr Drury’s favour. Mr Drury was compensated for the balance of the time that he would have worked on the project.

[18] The essential principle in Drury is that the “specified task” must be the employee’s task, not the employer’s task or project. The Drury principle has been applied in a number of decisions including:

(a) D’Ortenzio v Telstra 8 where the employee was principally employed on fixed term employment, but also undertook some additional work on a specific project for a short term (later extended three times). In the decision, it was held that extensions did not recreate the contract, but properly extended the end date resulting in one fixed term contract. Importantly, in relation to the argument about the employment being for a specified task, it was further held that work performed by the employee outside the specified task did not alter the nature of the contract because the work was “part and parcel” of the [substantive specific] task.9

(b) Qantas Airways Ltd v Fetz and Others 10 where the employees’ employment ended at the end of their apprenticeship. At first instance11 Vice President Ross (as he then was) rejected Qantas’ jurisdictional objections, found the dismissals unfair, and required Qantas to reemploy the applicants. Amongst other things, his Honour held that:

i. the apprenticeships were not for a specified term because they did not unambiguously identify the contractual completion date; and

ii. the “specified task” regulation did not apply because apprenticeships are not agreements for a specified task. He found that the apprenticeship contract is a mixture of a set of training syllabus and the provision of valuable work for the employer.

Qantas appealed. The Full Bench upheld the appeal in relation to the fixed term jurisdictional objection. It reasoned that “the period of the apprenticeship was fixed at four years by the letter of appointment…”. 12

However, relevantly, in relation to the question of whether the contracts were for a specified task, the Full Bench noted that,

“The New Shorter Oxford English Dictionary gives the primary meaning of ‘task’ as ‘is a piece of work imposed on or undertaken by person’. The second edition of the Macquarie Concise Dictionary provides the following definitions “1. A definite piece of work assigned or falling to a person; a duty. 2. Any piece of work.” 13

The Full Bench then held that,

“it seems to us that there is insufficient particularity involved in an apprenticeship for it to be described as a “specific task”. The phrase would normally apply to an identifiable project or job. It is straining language to treat an apprenticeship with all that the concept entails as one ‘task’ is we agree with his Honour that the mixture of training and work involved in an apprenticeship makes it difficult to describe an apprenticeship as a task and we respectfully concur with his view.” 14

In Qantas Airways Limited v Fetz the Full Bench referred to the following passage by von Doussa J in Anderson v Umbakumba Community Council, 15

“In the expression, “specified” is the past participle of the verb “to specify”. The ordinary meaning in the English language of “to specify” is to mention, speak of, or name (something) definitely or explicitly; to set down or to state categorically or particularly; to relate in detail.”

(c) Hewitt v ACTek Custom Engineering Pty Ltd 16 where Senior Deputy President Lacey found that Mr Hewitt’s oral contract of employment was for the specific task of developing a piece of software for cash registers on the half of the respondent. His honour also gave the following useful example,

“If an employee is engaged to work, for example, on a large-scale urban road development such as the Melbourne City Link project, that has no relevance in determining whether that employee’s contract of employment is for a specified task. However, if, for example, an employee was to be engaged under a contract which specified that their sole task was to develop the tolling system in relation to the road development project, this would be a matter of particular relevance in an assessment [of the jurisdictional objection].” 17

His honour also noted that “the project of the employer and the task of the employee [can be] closely related, if not one and the same.” 18 However, he held that,

“… the phrase “a specified task” should be interpreted narrowly so as to cover only situations where an employee has been engaged under a contract to perform a project or job which is distinct or identifiable in its own right. The task to which the original employment contract relates should be self-contained and not leave open the possibility of the employee performing any work outside the realm of the specific task which the employee is being employed. That is not to say that an employee engaged under a contract for a specified task could not agree, during the performance of the contract, to undertake some other work for the employer that was peripheral to the original contract.” 19

(d) Henderson v John Holland Pty Ltd 20 where the employee was engaged under an “Employment Application [that indicated] the position applied for was “Labourer Concreter” and the Job Location was “Water Treatment Plant Redcliffe”.” Commissioner Spencer held that the applicant was employed for a specified task even in circumstances where he had been engaged on a number of successive projects under a series of separate employment contracts relating to each project, specifying the task of concrete finishing.

(e) SPC Ardmona Operations Ltd v Esam and Others 21 where a Full Bench of the Commission, in respect of employees engaged by SPC Ardmona during the 2004 fruit processing season as seasonal employees, held that the contracts were not for a specified time because the end of the season was uncertain. However, the Full Bench further held that the task (of processing fruit delivered to the plant) was sufficiently distinct and identifiable to enliven the “specified task” jurisdictional objection. Notwithstanding, the appeal failed because it was held “that it was an express term of the relevant contracts that the employment of [the employees] could be terminated by [the employer] upon the giving of two days’ notice of payment in lieu. The Full Bench held that,

“When a contract of employment provides for a broad or unconditional right of termination during its term the period of the contract is indeterminate and thus not for a specified period of time. We were not taken to any authorities that have dealt with the impact of an unconditional right of termination of the contract specified task, but it seems to us that the same considerations apply. An unconditional right to terminate changes the nature of the contract - from a contract for a specified task …, to a contract for an indeterminate time.

The contract in question cannot be said to be for a “specified task” in circumstances where they may be terminated by the employer on a whim, merely upon the giving of two days’ notice, or payment in lieu, prior to the completion of the task in question.” 22

(f) Pasalic v Technometal Pty Ltd 23 where an employee employed for just over six years as a designer/drawer for the respondent (a manufacturer of automatic packaging machinery) was held not to be employed under a contract “for a specified task.” Deputy President Sams observing that “the singular word “task” discloses a deliberate intention of the legislature to restrict exemption of a person per month for dismissal protection between narrow and limited one based on a singular specified task. I’m fortified in this conclusion because exemption in the subclause later refers to a termination “on the completion of the task”. … a specified task is not synonymous with a person’s job or profession.”24

(g) Kristen Dale v Hatch Pty Ltd 25, where Deputy President Asbury upheld a jurisdictional objection that the applicant, who was employed by the respondent “on the Grosvenor Project in the position of Site and Facilities Administration Lead”, was employed for a specified task. Notwithstanding that Her Honour observed that “Ms Dale’s contract of employment and other related Hatch documentation is poorly drafted”26, her Honour held that,

“A ‘task’ is a piece of work to be performed or undertaken. The purpose of the phrase ‘is testified task’ is the term ‘task’ is has been treated as being synonymous with the terms role, job or project 27 that an employee is employed specifically to perform as distinct from the employer’s undertaking. … [Ms Dale’s] task or role was distinctly identifiable from [the employer’s] task or role…”28

[19] The decision in Dale v Hatch was the subject of an appeal. In Dale v Hatch Pty Ltd, 29 a Full Bench of the Commission considered the meaning of the expression “contract of employment … for a specified task” in s 386(2)(a) of the Act:

“[8] The consideration of Ms Dale’s appeal must start with determining the meaning of the expression “contract of employment… for a specified task” in s.386(2)(a). The ordinary meaning of the word “task” is, as stated in the Decision, a piece of work to be performed or undertaken. That was the meaning assigned to the term in the decision of a Full Bench of the Australian Industrial Relations Commission (AIRC) in Qantas Airways Limited v Fetz. It must be the task of the employee, not the employer, as was pointed out by Wilcox CJ in Drury v BHP Refractories Pty Ltd in relation to the same expression then appearing in reg.30B(1)(b) of the Industrial Relations Regulations:

“The words “for a specified task” qualify the words “contract of employment”. The contract of employment must be for a specified task; it must be a contract under which the employee is to carry out a specified task. The words “for a specified task” have nothing to do with the employer’s task, or project. This seems clear as a matter of grammar and it makes sense in policy terms. One can understand a view that the protections provided by Division 3 of Part V1A should not be available to people who undertake only a specified task. Especially after the task is completed, it would be anomalous to restrict the employer’s right to terminate the contract of employment. Bearing in mind that many projects undertaken by employers continue for many years, while employees come and go, it would be equally anomalous to exclude relief under Part V1A simply because the employee was engaged in connection with a particular project.”

[9] The task must be “specified” - that is, identified in definite terms. In a written contract of employment, it could usually be expected that the task would be identified in express words, although it is not impossible to conceive of a case whereby the task might be specified as a matter of necessary implication. Further, the relevant contract of employment must be “for” the specified task, meaning that it has been entered into for the purpose of the performance and completion of that task.

[10] A critical element in this part of the exception in s.386(2)(a) is, we consider, that the task be sufficiently definite in its nature and delineation such that identification of when the task is completed is not a matter of doubt or speculation or contingency but is clear and predictable. We draw that inference from the fact that s.386(2)(a) requires the termination of employment to occur at the end of the completion of the task, thus requiring it to be identifiable with certainty. The context supports that inference in that the other exceptions contained in s.386(2)(a) - a contract for a specified period terminating at the end of that period, or for the duration of a specified season terminating at the end of the season - likewise involve the termination of employment occurring at an identifiable time or upon an identifiable event.

[11] In the Decision the Deputy President said “For the purpose of the phrase ‘specified task’ the term ‘task’ has been treated as being synonymous with the terms role, job or project that an employee is employed specifically to perform as distinct from the employer’s undertaking”. We do not accept that “task” in s.386(2)(a) necessarily means the same thing as a role, job or project which the employee is engaged to perform. A “role”, as a matter of the ordinary meaning of the term, usually involves a collection of work duties and functions required to be performed on an ongoing basis for an indefinite period of time. It does not usually involve the completion of a discrete piece of work. A “job”, if the word is used in the narrow sense of “a piece of work; an individual piece of work done in the routine of one’s occupation or trade”, would equate to a task, but not if it is used in its wider sense as “a post of employment”. A project, if it is a project to be undertaken and completed by the employee, may equate to a “task” but not if the project is the broader employer’s project upon which the employee works, for the reasons explained in Drury. In Qantas Airways Limited v Fetz the Full Bench referred to a “task” as normally applying to an “identifiable project or job” able to be described with sufficient particularity. In doing so, we consider that “project” and “job” are to be understood in the narrower senses we have identified.

[12] The Deputy President cited three authorities to support the approach taken by her to the interpretation of “specified task” in the Decision. Two of these authorities are, we consider, entirely consistent with the approach we prefer. In the first, Hewitt v ACTek Custom Engineering Pty Ltd, a decision of the AIRC, an employee engaged to personally develop a piece of software for cash registers for an employer with no software expertise was held to have been employed under a contract of employment for a specified task. In that decision the AIRC (Lacy SDP) articulated the meaning of “specified task” in a manner with which we agree as follows (footnotes omitted):

“[22] The phrase “a specified task”, as it relates to reg 30B(1)(b), has been defined narrowly in the relevant authorities. In Qantas Airways Limited v Fetz, the Full Bench of this Commission stated that the phrase “a specified task” would “normally apply to an identifiable project or job.” The Full Bench cited three dictionary definitions which define “task” as being, “[1] a piece of work imposed on or undertaken by a person ... [2] A definite piece of work assigned or falling to a person; a duty ... [3] any piece of work.”

[23] Another definition which may provide assistance in understanding the meaning of the phrase "a specified task" can be found in The CCH Macquarie Dictionary of Employment and Industrial Relations. In it, the word "task", relevantly, is defined as being, "an element or group of elements of work by which a specific result is achieved."

[24] I agree that the phrase “a specified task” should be interpreted narrowly so as to cover only situations where an employee has been engaged under a contract to perform a project or job which is distinct or identifiable in its own right. The task to which the original employment contract relates should be self-contained and not leave open the possibility of the employee performing any work outside the realm of the specific task for which the employee is being employed. That is not to say that an employee engaged under a contract for a specified task could not agree, during the performance of the contract, to undertake some other work for the employer that was peripheral to the original contract. In those circumstances, a question might arise as to whether there has been a variation of the terms of the original contract.”

[13] In the second decision (chronologically speaking), Henderson v John Holland Pty Ltd, an employee engaged to undertake the concrete finishing work on a specific construction project was held to have been employed under a contract of employment for a specific task. In that case it is reasonably apparent that there was a discrete piece of work on a project which the relevant employee had to complete.

[14]The third decision, Derar v Recruitco Pty Ltd, is problematic. That case involved a casual employee of a labour hire company who was assigned to work for a particular client (a retail grocery distributor) and did so, on a regular and systematic basis, for a period of over six years. The employee claimed his employment with the labour hire company terminated when the client informed the labour hire company his assignment was terminated. This occurred after some absences from work by the employee, alleged to be unauthorised, due to the birth of his child. The following conclusion was stated in that decision:

“[39] I have concluded that in this case, where the employment offer is clearly restricted to an engagement by a host organisation, that must define the specific duration of that particular employment arrangement. Accordingly, Mr Derar was engaged for a specified task. That task concluded when IGA terminated the assignment. It follows then that Mr Derar was not dismissed for the purposes of s.386 and accordingly, is not able to pursue this application. Had Mr Derar been dismissed by Recruitco whilst his assignment to IGA continued, a different conclusion relative to s.386 would have resulted. In this instance however, it was the termination of the assignment with IGA which ended the employment with Recruitco.”

[15] We cannot, with respect, accept that an employment contract to perform work of an ongoing and generic nature for a third party client until that client no longer requires the person to perform the work constitutes an employment contract for a specified task. There was no identifiable or distinct piece of work that was required to be performed or any specific result required to be achieved. The facts did not suggest that the employee had completed any particular piece of work or even that the work performed by the employee was no longer required to be performed when the assignment was terminated, but only that the client did not want him to perform it anymore. We do not consider that the employment “task” of an employee can be defined simply by reference to the currency of a commercial labour hire arrangement between the employer and a client without doing violence to the ordinary meaning of the word. Nor do we consider that a task is something which can be regarded as completed for the purpose of s.386(2)(a) when a third party client decides it does not want the employee of the employer to perform the relevant work anymore. A “task”, properly understood, is one which is completed when the employee finishes the work involved in it.” (my underline)

[20] The Full Bench in Dale then continued,

“[18] There is nothing in the provisions of the Contract which either specifies a task to be performed or provides that the Contract is coterminous with any such task. Clause 4 of the Contract specified that employment is on a “fixed term basis”, but no fixed period of time is specified anywhere in the Contract and Hatch did not contend that it was a “contract of employment for a specified period of time” for the purpose of s.386(2)(a). Clause 7 referred to the Contract, and the employment, terminating on Ms Dale’s “demobilisation” from the Grosvenor Project, but it is not apparent that this was referrable to the completion of any particular task or piece of work. The same can be said in relation to the reference in clause 7 to Ms Dale being notified of the completion of her position: for the reasons already stated, a “position” is not the same thing as a task. Read in its commercial context, we consider that the Contract is to be read as providing that the purpose of the employment was for Ms Dale to undertake an administrative role on the Grosvenor Project, and that this was to terminate when AAMC decided that it did not require Hatch to provide Ms Dale’s services any further.

….

[21] There is no issue that the Deputy President correctly described the facts. However, the above passage confirms that Ms Dale’s employment did not end because she had completed any particular task. Although the volume of the duties she performed had diminished, the work which she had been required to perform continued and was performed by AAMC employees. The cause of her termination was the decision by AAMC to restructure its workforce with the result that the role filled by Ms Dale was abolished. For the reasons we have already stated, a “role” as ordinarily understood is not a task, and the abolition of a role does not constitute completion of a task. We do not consider therefore that Ms Dale was employed under a contract of employment for a specified task or that her employment terminated on completion of any specified task.

[22] There is one other aspect of the Contract which requires comment. Clause 27 of the Contract provided, among other things, that Ms Dale’s employment could be terminated by Hatch without cause on one week’s notice during the probation or minimum employment period and on four weeks’ notice thereafter. In relation to employment contracts for a specified time, it was held in Andersen v Umbakumba Community Council 30 (in the context of the termination of employment provisions of the Industrial Relations Act 1988) that an employment contract will not be one for a specified period of time if it gives either party an unqualified right to terminate the contract on notice or with payment in lieu of notice within any specified term. The basis for this proposition is that a specified period of time is a period of employment that has certainty as to its commencement and time of completion, and where a contract provides a broad or unconditional right of termination during its term, the period of the contract is indeterminate and thus not for a specific period of time.

[23] We would be inclined to the view that, by parity of reasoning, this proposition would apply to the exception for contracts of employment for a specified task. Employment for a specified task would equally suggest certainty that the period of employment began and ended with the commencement and completion of the task, and that a broad or unconditional right of termination is inconsistent with that certainty. If so, the existence of such a right in clause 27 would provide further support for our conclusion that Ms Dale’s contract of employment was not for a specified task. However, we note the following comment made by Hatcher VP in Jin v Sydney Trains 31  as follows (emphasis added):

“[29] Arguably the applicability of Andersen to the proper interpretation of s.386(2)(a) has been called into question as a result of paragraph [1532] of the Explanatory Memorandum for the Fair Work Bill 2009 which said (emphasis added):

[1532] Paragraph 386(2)(a) reflects the common law position that termination in these circumstances would not be a dismissal. The fact that an employment contract may allow for earlier termination would not alter the application of this provision as the employment has terminated at the end of the period, task or season. However, if a person engaged on this sort of contract is terminated prior to the end time specified in the contract, they may seek an unfair dismissal remedy if they satisfy the other requirements.”

[24] We were not addressed in relation to this issue, and it is not necessary for us to express a final view about it in order to determine this appeal. Accordingly, it can be left for another day.”

[21] Although the appeal in Dale was allowed, the Full Bench ultimately found there had been no unfair dismissal.

[22] The Full Bench principles in Dale v Hatch were applied in Newton v Lend Lease Engineering, 32 were Deputy President Saunders held that,

“[13] The Contract does not, expressly or impliedly, identify, in definite terms, any distinct piece of work that was required to be performed by Mr Newton or any specific result required to be achieved by him. The Contract nominates Mr Newton’s position as a Labourer, which was modified by agreement to that of part Labourer and part Roller Operator. A “position” is not the same thing as a “task”, particularly in circumstances where the Contract permitted Lendlease to direct Mr Newton to perform “any duties or tasks”. Further, the Contract permitted Lendlease to unilaterally determine, at any time, when the work for which Mr Newton was employed on the R2B project had completed. Lendlease did this by deciding in June 2018 that it no longer needed Mr Newton to work on the R2B project as a Labourer and/or Roller Operator, notwithstanding that such work was continuing to be done on the R2B project by other Lendlease employees. In this way, identification of when the “task” for which Mr Newton was employed would be, or had been, completed was not clear or predictable, but was a matter of doubt and speculation on Mr Newton’s part. For these reasons, Mr Newton was not employed under a contract of employment for a specified task.

Did Mr Newton’s employment terminate on completion of the task?

[14] A task is one which is completed when the employee finishes the work involved in it.

[15] Mr Newton’s employment with Lendlease did not end because he had completed any particular task. Rather, Lendlease decided to bring Mr Newton’s employment to an end because it had completed about 85% of its bulk earthworks on the R2B project and it did not require as many Labourers or Roller Operators working on the project to complete it. Lendlease did not employ anyone else to replace Mr Newton’s role on the R2B project. In other words, Lendlease made a no doubt commercially sensible decision that it no longer required as many employees working on the R2B project, so it abolished the roles of a number of employees on the project, including the role occupied by Mr Newton.4 However, the abolition of a role does not constitute, or necessarily coincide with, the completion of a task. In this case it did not, for there was no specific task which Mr Newton had completed.”

[23] Newton v Lend Lease Engineering is directly analogous in the present matter.

CONSIDERATION

Were the Applicants employed under a contract of employment for a specified task?

[24] As in Dale’s case the contractual documentation of Messrs Savill and Harding is poorly drafted.

[25] Although the letter of offer states “The employment of the Project will end upon the completion of the task…” nowhere in any of the contractual documentation is “the task” defined. That is to say, “the task” is not expressly stated or otherwise specified.

[26] Before me the Respondent accepted that,

“… the Applicants’ contracts do not define expressly in writing, the specified task they were engaged before. However, this respondent submits that the task was remained clear as a matter of necessary implication, which is sufficient to bring the engagement within the s.386(2)(a) exclusion. The task they were contracted to do is only capable of being performed by qualified electricians.” 33

[27] The Respondent submitted that,

“the Applicants’ “specified task” under their employment contracts was:

(a) to install, as directed, electrical assets, such as lighting and signage; and

(b) to install, as directed, electrical cable and the supporting infrastructure for the electrical assets, on the Project. 34

….

The Applicants’ tasks on the Project matches this description. Each Applicant moved progressively through the tunnel, which is of course finite in length, completing the necessary electrical works they were allocated. It was entirely predictable when the task would be completed; when there was no longer electrical work required for them to perform in the tunnel. The text also indicates that their task would complete prior to the final conclusion of the Project.” 35

[28] The Respondent further submitted that,

“Both Applicants’ employment with the Respondent was directly linked to the Project. … The Project itself, while part of the large WestConnex Project, was only anticipated to take six to nine months to complete. Neither Applicant was employed to work on the Project on the understanding that their employment with the Respondent would be permanent.” 36

[29] I do not accept the Respondent’s submissions. This is because the authorities make it clear that “specified task” should be interpreted narrowly. 37 It is not enough, in the present matter, that some necessary implication should be drawn. It was within the power of the Respondent to draft a contact in specific terms. It failed to do so. The deficiencies in the contractual documentation should not be interpreted in favour of the Respondent.

[30] The Applicants were employed in roles as electricians. A role or a position is not the same as a task. Being employed as an electrician informs us about what the Applicants were qualified to undertake. It does not inform us about what specified tasks they were to undertake as electricians and when they (or anyone else) would know when they had completed those tasks. It is not enough to say, as the Respondent contended, that the “specified tasks … [were] self-contained to electrical work.” 38

[31] Like the apprentices in the Qantas case, the role of the Applicants as electricians involved a mixture of work. As in the Qantas case, the contractual documentation in the present matter lacked sufficient particularity for it to be described as a “specified task”. Being an electrician involves a calling, skill, or trade. It can involve many different tasks. The statutory exclusion created by s.386(2)(a) requires a task or tasks to be specified.

[32] Drawing again on von Doussa J in Anderson v Umbakumba Community Council, 39 we are remined that,

“In the expression, “specified” is the past participle of the verb “to specify”. The ordinary meaning in the English language of “to specify” is to mention, speak of, or name (something) definitely or explicitly; to set down or to state categorically or particularly; to relate in detail.” 40

[33] Although the letter of offer refers to “the task” it does not “mention, speak of, or name (something) definitely or explicitly.” The contractual documentation refers only to “Your role: Electician” and the “SCEE Westconnex” project.

[34] The Applicants in the present matter were electricians on the Westconnex project. In that sense they were more akin to Mr Drury, the labourer the Rooty Hill project way back in 1995.

[35] Finally, in relation to the issue of task the Applicants also contended that the “specified task” exclusion did not apply to them because, from time to time they also performed the non-electrical work of TAs, cleaning duties, the duties of Health and Safety Representatives and (in the case of Mr Harding), office duties. I am satisfied that, to the extent that other duties were performed, they were consistent with the General Terms and Conditions of Employment. They did not recreate the contract of employment nor did they vary the contract of employment. The other duties were “part and parcel” of the Applicants’ roles.

[36] For the reasons given, the Applicants’ were not employed under a contract for a specified task.

What to make of the existence of a notice provision in the contracts of employment?

[37] In the Full Bench decision in Dale v Hatch, the Full Bench stated observed that Ms Dale’s contract could be terminated on notice. The Full Bench indicated that it was,

“[23] … inclined to the view that, by parity of reasoning, …. Employment for a specified task would equally suggest certainty that the period of employment began and ended with the commencement and completion of the task, and that a broad or unconditional right of termination is inconsistent with that certainty.”

[38] However, the Full Bench then stated,

“[24] We were not addressed in relation to this issue, and it is not necessary for us to express a final view about it in order to determine this appeal. Accordingly, it can be left for another day.”

[39] I formed the view that the present matter is that “other day”. The parties were expressly invited to make submissions about the application of Full Bench decision in Dale v Hatch. I have had regard to those submissions. In short:

(a) for the Applicants, it was contended that an unconditional right to terminate employment is inconsistent with the certainty required of a contact for a specified task.

(b) for the Respondent, it was contended that I should not follow the inclination of the Full Bench in Dale v Hatch because the reasoning in Anderson is not analogous to contracts for a specified task.

[40] Noting the observations made by:

(a) the Full Bench in SPC Ardmona Operations Ltd v Esam and Others; 41

(b) Vice President Hatcher in Jin v Sydney Trains; 42 and

(c) the Full Bench in Dale v Hatch 43

if I am wrong in my conclusion (above) about the Applicants’ contracts not being for a “specified task” (for the reasons I have already given), I find that they were not, in any case, for a specified task because they invested, in both parties, a broad and unconditional right to terminate the contracts on notice. Like a contract for a “specified period of time”, a contact for a “specified task” requires certainty. An unconditional right to terminate in advance of the completion of the specified task is inconsistent with the certainty required of such a contract such that it will enliven the operation of s.386(2)(a).

[41] Paragraph [1532] of the Explanatory Memorandum for the Fair Work Bill 2009 does not alter my view. The language of the FW Act is clear and unambiguous. The Full Bench in Saeid Khayam v Navitas English Pty Ltd 44 held the same. Consequently, because the Explanatory Memorandum is extrinsic material under s.15AB(2) of the Acts Interpretation Act 1901, I may not use it, in the present matter, to determine the meaning of s.386(2)(a).45 If the Parliament intended s.386(2)(a) to operate as explained in the Explanatory Memorandum, it could have amended the section accordingly.

[42] For this additional reason, the Applicants’ were not employed under a contract for a specified task.

Did the Applicants’ employment terminate on completion of the task?

[43] Because the task to be performed by the Applicants was not specified in the relevant contractual documentation, it is difficult to discern when the (non-specified) task was completed.

[44] The Applicants’ employment with the Respondent did not end because either of them had completed any particular task. When they were dismissed electrical work was still required. No doubt it was required by a lesser number of electricians, but the task of electrical work continued.

[45] Mr Karam gave the following evidence about demobilising the Project,

“21. As work groups finished up, for example, Package 1 Team 1 (sections 39 to 21) in November 2019, all SCEE labour (except for maybe one or two workers) were dispersed to other sections to continue undertaking electrical work but in a different section.

22. At around the end of February 2020, we still had a work crew of about 150 SCEE workers. The Project was almost complete and it was getting to the point at the end of the Project where I could see there just were not enough jobs left or working spaces for there to be that many workers. By that stage, Harding and SaviII were both working in the same area (in sections 44 and 45).

23. I asked my supervisors to arrange for a demobilisation plan in late February 2020, to be implemented in March 2020.

24. By early March, we were experiencing bottlenecks, which is where you have too many workers in one area so there are delays and he work was mostly finished. We (as in Heyday) started demobilising workers at that point. It was clear for everyone that the Project was nearly complete given where we were in the tunnels itself. When we were nearing completion I said things like "Guys, you know the job is coming to an end. We need to have a good push and finish safely." I made these comments to motivate them.

25. The demobilisation occurred as follows:

(a) On 13 March 2020, 281 workers were demobilised;

(b) On 27 March 2020, 143 workers were demobilised (21 of whom were support staff working in an office environment); and

(c) On 8 April 2020, a further 97 workers were demobilised (by this point, all works other than 3.25% of testing and commissioning was done);

(d) By 4 May 2020, all SCEE employees were demobilised.

26. These numbers include non-SCEE workers.” 46

[46] Mr Karam’s evidence underscores the fact that the decommissioning of employees (including the Applicants) was not related to any completion of a specified task.

[47] The Respondent decided to bring the Applicants’ employment to an end because the vast majority of electrical works on the Westconnex Project had been completed and it did not require as many electricians on the Project to complete it. The Respondent gradually demobilised workers on the Project. It was a commercially sensible decision. However, consistent with the decision in Newton, I am not satisfied that the abolition of the electrical roles performed by the Applicants constituted or necessarily coincided with the completion of a task that they were contracted to perform and complete.

[48] For the reasons given, the Applicants’ employment with S&DH Enterprises did not terminate on completion of any specified task.

CONCLUSION

[49] Above, I have explained my findings that:

(a) the Applicants were not employed under a contract of employment for a specified task because:

i. no task was specified; and, in any case,

ii. the contracts provided for an unconditional right to terminate with notice, and

(b) the employment of the Applicants did not terminate on completion of the task

[50] Consequently, for these reasons, I am not satisfied s.386(2)(a) is enlivened because the Applicants were not employed under a contract of employment for a specified task.

[51] It necessarily follows that the jurisdictional objection is dismissed. Orders to this effect [P725927] will be issued with this decision.

[52] The substantive applications will now be programmed for hearing.

COMMISSIONER

Appearances:

Mr A Jacka on behalf of the Applicant
Ms C Lenard on behalf of the Respondent

Hearing details:

2020;
Sydney (via Microsoft Teams);
12 August.

Final written submissions:

11 November 2020; and
12 November 2020.

Printed by authority of the Commonwealth Government Printer

<PR725917>

 1   Transcript, PN94-PN100.

 2   Transcript, PN13-PN16.

 3   E.g. spotting for plant and machinery, setting up traffic control and drop zones, assisting electricians with structural work, then cleaning up work areas.

 4   Demobilising is a term commonly used in the construction industry to describe the winding down phase of a construction project as it is nearing completion and workers’ engagements with the project are terminated as a result.

 5 (1995) 62 IR 467.

 6   Ibid, at 472.

 7   Ibid.

 8 (1997) 78 IR 468.

 9   Ibid, at 480

 10 (1998) 84 IR 52.

 11 P6706 [1997] AIRC 1128 (17 November 1997).

 12 (1998) 84 IR 52, at 57.

 13   Ibid, at 66.

 14   Ibid.

 15 (1994) 56 IR 102, at 106.

 16   PR904665 [2001] AIRC 500 (25 May 2001).

 17   Ibid, [20].

 18   Ibid, [21].

 19   Ibid, [24].

 20   PR917230 [2002] AIRC 475 (30 April 2002).

 21 (2005) 141 IR 338.

 22 Ibid, [107]-[108].

 23   [2012] FWA 8136.

 24 Ibid, [45]-[46].

 25   [2015] FWC 4970.

 26   Ibid, [77].

 27   This proposition was rejected by the Full Bench on appeal.

 28   [2015] FWC 4970, [76].

 29   [2016] FWCFB 922.

 30 (1994) 56 IR 102.

 31   [2015] FWC 4248.

 32   [2018] FWC 6385.

 33 Respondent’s submissions dated 15 July 2020, at [20].

 34   Ibid, [19]

 35   Ibid, [22].

 36   Ibid, [23].

 37   Hewitt v ACTek Custom Engineering Pty Ltd PR904665 [2001] AIRC 500 (25 May 2001).

 38   Transcript, PN47.

 39 (1994) 56 IR 102.

 40   Ibid, at 106.

 41 (2005) 141 IR 338, [107]-[108].

 42   [2015] FWC 4248, [28].

 43   [2016] FWCFB 922, [23]

 44   [2017] FWCFB 5162, [95].

 45 Ibid, at [94].

 46   Statement of Richard Karam dated 14 July 2020.