Matthew Hitchcock and Warner Bros Movie World

[1994] IRCA 184

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY

NO. QI190 OF 1994

BETWEEN:
  MATTHEW HITCHCOCK

Applicant

AND:
  WARNER BROS. MOVIE WORLD

Respondent

REASONS FOR JUDGMENT

BOULTON J.R.

In these proceedings the parties agree that the applicant was employed by the respondent as a casual atmosphere performer (instrumentalist) in a band which played at the respondent’s Movie World near the Gold Coast, Queensland.

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While the applicant was employed under the terms of a State Award, the parties also agreed that there was no question of an adequate  alternative remedy being available to him, he, as a casual, being without access to the remedies provided under Subdivision 3 of Division 5 of the Queensland Industrial Relations Act 1990.  I proceed on this basis.

The matter for my determination at this stage is the applicability or otherwise of regulation 30B of the Industrial Relations Regulations to the applicant’s employment.  Ordinarily, in this Court, such a question is not determined in the absence of a determination of the merits of an application.  However, the parties urged upon me that the point could be disposed of in a half-day hearing, with formal reading of affidavits and some short cross-examination.  In the circumstances, I acceded to their entreaty.

It is common ground that the applicant commenced employment with the respondent on or about 6 December 1993.  His engagement lasted until about the end of the December 1993 - January 1994 school holidays.  He was engaged again, for a total of 139 hours, in the period 19 March 1994 to 17 April 1994 (encompassing the Easter school holidays).  He was further engaged by the respondent in the June-July 1994 school holidays.

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By letter dated 24 August 1994 (before the commencement of the September school holidays) the applicant was advised by the respondent that his services would no longer be required.

Regulation 30B relevantly provides:

(1)       .....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:

(a)       an employee engaged under a contract of employment   for a specified period of time, being a contract that was   entered into before 16 November 1994;

(b)       an employee engaged under a contract of employment   for a specified task;

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

It was not urged upon me that subregulation (2) required consideration.  -4-

Subregulation (3) states:

.....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 6 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.

The applicant’s Counsel directed his submissions to an examination of subregulation (3).  He submitted that the applicant was not excluded from the protection of the relevant sections of the Act because he came within both limbs of that subregulation.

There is no dispute that the applicant was engaged by the respondent for a sequence of periods of employment during a period of at least 6 months.  The first question then is whether or not the applicant was

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engaged by the respondent on a regular and systematic basis for that sequence. 

Neither Counsel was able to point me to judicial consideration of this phrase in the industrial context.  I was referred to dictionary definitions of both “regular” and “systematic”.  I was referred also to Smith v Gale
[1947] VLR 475 at 477 where Lowe J. referred to “systematically” as there meaning “regularly”, in contradistinction to “spasmodically” or at “odd times”. Also, the decision in Re Mah Construction 19 ALD 21 wherein the AAT thought “systematic” in the definition there under consideration meant a reference to experimentation or analysis being arranged or conducted in accordance with a planned or organised method.

In my opinion, the respondent’s engagement of the applicant recurred at fixed times, being school holidays, in a planned fashion such as to bring his engagement within the first limb of subregulation (3).

Turning to the second limb, did the applicant have a reasonable expectation of continuing employment by the respondent?  For his expectation to be reasonable, I consider there must be a reasonable probability of it being borne out - Peabody v FCT 40 FCR 531 at 541

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(which portion of the judgment survived challenge in the High Court).  I do not think it is to the point that the applicant’s letter of engagement (exhibit A to the affidavit of Mr. Mowlam), in referring to his initial engagement, went on to state “further engagements may be offered thereafter on an as called basis, subject to your ability and satisfactory performance during the initial period” and “no other guarantees, promises or agreements have been discussed”.  The fact is that the applicant had employment with the respondent for three successive school holiday periods, school holidays being peak periods for the respondent’s business. 

There is material from the applicant in his affidavit filed 15 December 1994 in support of his expectation of continuing employment with the respondent.  The applicant was not required for cross examination.  The applicant also relied on an affidavit sworn by a Mark Paul Turner, on 16 December 1994.  Mr. Turner essentially worked in the same band as the applicant.  He too deposes to facts supportive of an expectation of continuing employment with the respondent.  He too was not required for cross-examination.

I have taken into account the evidence of Mr. Mowlam, the respondent’s Show and Entertainment Manager.  He pointed out that the attractions

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and entertainment offered to customers at Movie World are reviewed regularly.  There was no intention of making the band (of which the applicant was formerly a member) a regular attraction.  Its future was subject to its continuing popularity.

There is nothing in the evidence which leads me to conclude that the applicant’s expectation of continuing employment by the respondent was irrational, absurd or ridiculous.  I hold that his expectation was reasonable.

This conclusion disposes of the argument concerning the effect of paragraph (1)(d).  The respondent relied also on paragraphs (1)(a) and (1)(b).  The applicant’s Counsel contended, as I understood his argument, that if the applicant were not a casual employee engaged for a short period within the meaning of subregulation (3), he could not come within either of paragraphs (1)(a) or (1)(b).  Whether or not that be true in all cases I need not decide.      In this case, I consider that his submission is correct.  The type of engagement contemplated in the proviso to subregulation (3) seems to be at odds with the contracts envisaged in either paragraphs (1)(a) or (1)(b). Von Doussa J. in Andersen v Umbakumba Community Council DI 130 of 1994 26

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September 1994 thought that “specified” in this context identified a period of time or a task the scope and parameters of which are stated definitely.  It will be recalled that further engagements of the applicant in the present case were expressed as being “offered thereafter on an as called basis”.  I consider that there was no specificity attached to either the applicant’s period of engagement or task in this sense. 

The upshot is that I declare that the applicant is not excluded by regulation 30B from the operation of Subdivisions B, C, D and E of  Division 3 of Part VIA of the Act.  I emphasise that this is the only point to which I have given consideration, it being the basis for my setting down, on 1 December 1994, the matter for hearing.

I certify that this and the preceding SEVEN (7) pages are a true copy of the reasons for judgment of Judicial Registrar Boulton.

........ ........ ........ ........ ........ ........ ........ ..
JUDICIAL REGISTRAR

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DATED:  31 January1995

Counsel for the applicant:                  Mr. Logan

Solicitors for the applicant:                Biggs & Biggs, Francis & McGregor

Counsel for the respondent:               Mr. Murdoch

Solicitors for the respondent:             Aspromourgos & Associates

Date of hearing:  16 December 1994
Date of judgment:                   31 January 1995