NIJAZ Ziberoski and R and J Hill Investments Pty Limited

[1995] IRCA 186

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA  VI 1258 of 1995
VICTORIA DISTRICT REGISTRY

B E T W E E N:

NIJAZ ZIBEROSKI
Applicant

A N D

R & J HILL INVESTMENTS PTY LIMITED
Respondent

Reasons for Judgment
 (delivered ex tempore and revised from the transcript)

11 April 1995  PARKINSON JR

This is my decision in relation to a jurisdictional matter arising in the matter of Ziberoski and R & J Hill Investments Pty Limited, matter number 1258 of 1995. This decision is delivered ex tempore. The reasons for the decision will be reduced to writing, a copy of which will be provided to the parties by the Court along with a copy of the orders of the Court.

This matter is an application arising from the termination of the applicant’s employment by the respondent. This matter was listed this day at directions only, however upon canvassing the issues with the parties, it became apparent to me that a real issue arose as to the jurisdiction of the Court to entertain the application having regard to the operation of S170CC and Regulation 30B(1)(d) of the Industrial Relations Act 1988.

I therefore decided that it was a convenient course to invite the parties to deal this day with that aspect of the proceedings. This course was agreed to. I heard evidence from the applicant, the respondent’s counsel indicating at the conclusion of the applicant’s evidence that it did not wish to call evidence in relation to this matter.

The applicant who is 13 years of age was employed by the respondent on a casual basis in its video hire store operation at Dandenong. The applicant is an articulate and intelligent young man who has appeared for himself during the course the progression of his claim, both in proceedings before the Australian Industrial Relations Commission and in this matter before the Court. He has acquitted himself well and is an impressive young person.

I turn now to deal with the circumstances and nature of the employment.

The applicant’s employment period is notified on the group certificate as 5 December 1994 to 13 January 1995. That certificate was Exhibit Z1.  The permit from the Department of Business and Employment for the engagement of an employee under the age of 15 years (Exhibit Z1), authorises the employment from the date of the issue of the permit, being 14 December 1994.

The applicant concedes that his employment was casual and that the hours of his work or roster arrangements would alter depending upon the level of demand for staff. His evidence was that he was informed at the time of his engagement that he would be employed for longer hours during the school holidays  His evidence was that he had no set or regular predetermined hours of work, and I am satisfied that the nature of his employment was casual and not so regular or defined as to be truly described as part time.

Having determined that the employment was casual it is necessary to determine the Court’s jurisdiction in this matter having regard to the exclusions operating by virtue of S170CC and regulations 30B(1)(d) and 30B(3).

These provisions provide that a casual employee is excluded from the operation of the Act where that employee is one engaged for a short period within the meaning of sub-regulation (3). That sub-regulation provides that a casual employee is employed for a short period unless they can satisfy this Court that they were regularly and systematically employed during a period of at least six months and that the employee had a reasonable expectation of a continuance of the employment by the employer.   

There are a number of difficulties faced by the applicant in this matter.
The first is that the period of employment did not extend to six months.
Whilst the evidence of the applicant was that he assisted in the store during approximately a five month period prior to his employment, and that this was done in exchange for free videos, I am unable to accept that this arrangement constituted a legally binding employment agreement, or that there was on the evidence any suggestion of an intention to create legal relations between the parties prior to the engagement on 5 December 1994.

Therefore it is apparent that the applicant is precluded by Regulation 30B(1)(d) from continuing these proceedings in relation to the merit of his claim.

There are other aspects in relation to this employment including the irregularity and the lack of system employed by the respondent in relation to the employment which would also give a basis for a dismissal of this matter pursuant to jurisdictional grounds.

In view of the above matters, I dismiss the application.

I certify that this and the preceding three (3) pages
are a true copy of the reasons for judgment of
Judicial Registrar Parkinson as recorded in the
transcript and revised by the Judicial Registrar
on 26 April 1995.

Associate:
Dated:  11 April 1995

Applicant in person
Solicitor for the Respondent:  Mr R Leggo

Date of hearing :  11 April 1995
Date of judgment:  11 April 1995