Uzcateguigayman v Hospitality Horizons
[1997] IRCA 256
•10 June 1997
DECISION NO:256/97
INDUSTRIAL RELATIONS COURT OF AUSTRALIA
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - meaning of “casual employee employed for a short period”
Workplace Relations Act 1996 (Cth), s 170CC, Reg 30(B)
Andison v Woolworths (Industrial Relations Court of Australia, Moore J, 8 August 1995)
Burazin v Blacktown City Guardian Pty Ltd (IRCA, Madgwick J, 15 December 1995)
Mohazab v Dick Smith Electronics Pty Ltd (IRCA, Full Court, 28 November 1995)
Reed v Blue Line Cruises Limited (IRCA, Moore J, 26 November 1996).
Selvachadran v Peteron Plastics Pty Ltd (1995) 62 IR 371
Westen v Union Des Assurances De Paris (IRCA, Madgwick J, 17 December 1996)
LACHELLE UZCATEGUIGAYMAN v HOSPITALITY HORIZONS
NI 1153 of 1996
Madgwick J
Sydney
10 June 1997
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
)
)) NI 1153 of 1996
) NEW SOUTH WALES DISTRICT REGISTRY )
BETWEEN: LACHELLE UZCATEGUIGAYMAN
ApplicantAND: HOSPITALITY HORIZONS
Respondent
JUDGE(S): MADGWICK J PLACE: SYDNEY DATED: 10 JUNE 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application for review is upheld.
The judicial registrar's decision is quashed.
The matter is to be remitted back to the judicial registrar for further determination in accordance with these reasons and otherwise.
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
)
)) NI 1153 of 1996
) NEW SOUTH WALES DISTRICT REGISTRY )
BETWEEN: LACHELLE UZCATEGUIGAYMAN
Applicant
AND: HOSPITALITY HORIZONS
Respondent
JUDGE(S): MADGWICK J PLACE: SYDNEY DATED: 10 JUNE 1996
REASONS FOR EX-TEMPORE JUDGMENT
(revised from transcript)
MADGWICK J: In this case the applicant sought relief from the Court for alleged unlawful termination of her employment under Division 3 of Part VIA of the Workplace Relations Act1996 (Cth). At the end of the applicant's case before a judicial registrar, the respondent submitted that the applicant must fail on her own case because she was excluded from the operation of the Act pursuant to regulation 30B as a "casual employee engaged for a short period" within the meaning of subregulation 3. The judicial registrar indicated that he would hear submissions on this question without denying the respondent the opportunity to call evidence should the respondent's submission fail.
In the event the judicial registrar upheld the respondent's submission and dismissed the applicant's application for relief. The applicant now seeks that the decision of the judicial be reversed upon review and that the case be remitted to the judicial registrar for further hearing.
The facts so far as they appear in the judicial registrar's reasons appear to be these: the applicant commenced employment on 5 July 1995 with the respondent to perform work which in substance was that of an employment counsellor. The respondent company operated a labour market program which was sponsored by the Department of Education, Employment and Training. As part of this program, "job clubs" were established as a means of teaching long term unemployed people skills which might help them to find work.
Upon her engagement the applicant was to work six hours a day, five days per week. It seems that her employment was called "casual" by both parties. She worked until 21 December 1995 when one job club finished. Another job club was to commence on 11 January 1996. There was a dispute between the parties, which the judicial registrar did not find it necessary to resolve, as to whether the applicant "resigned" on 21 December or not, but subject to that question, it seems clear that both parties were expecting that the applicant would work the same hours and do the same sort of work in connection with the job club.
According to the judicial registrar's findings, the respondent seems to have regarded one period of employment as having ceased on 21 December. The applicant seems to have taken the view that unless she had "resigned" or her engagement was in some other way terminated, her engagement for employment would have continued beyond 21 December 1995, notwithstanding that she would not perform any duties between 21 December and 11 January. The judicial registrar concluded that the applicant's contract of employment finished on either 21 or 22 December 1995, because the job club ceased to function on the 21st and the applicant was engaged, though not employed, up to 8 January 1996. That was a date which, for reasons I need not canvas, both parties agree was the last date to which her engagement or her employment subsisted.
The judicial registrar relied on Andison v Woolworths (Industrial Relations Court of Australia, Moore J, 8 August 1995) to conclude that there had not been periods of employment as a casual employee during a period of at least six months as regulation 30B(3) requires. It seems to me that the legal principles which govern this case may be stated as follows:
Regulation 30(B) is subject to section 170CC. As I explained in Burazin v Blacktown City Guardian Pty Ltd (Industrial Relations Court of Australia, 15 December 1995) the exclusions purportedly effected by that regulation do not have effect if they are not permitted by the Termination of Employment Convention;
That Convention permits the exclusion only of "workers engaged on a casual basis for a short period": Article 2(2)(c).
The Convention focuses attention on the engagement of the employee, in particular, its basis and its duration: see Burazin and Reed v Blue Line Cruises Limited (Industrial Relations Court of Australia, Moore J, 26 November 1996).
Article 2(2)(c) should be interpreted liberally in accordance with the ordinary meaning of its words, having in mind the object and purpose of the Convention, but bearing in mind the desirability of international uniformity: see Mohazab v Dick Smith Electronics Pty Ltd (Industrial Relations Court of Australia, Full Court, 28 November 1995).
Australian industrial practice, nomenclature and award provisions are not determinative of the basis of the engagement as being "casual" or not, and care needs to be taken to distinguish permanent (that is, in the sense of subsisting for an unlimited term) part-time employment which is not irregular, from employment which is irregular and casual: see Burazin and Reed.
It is necessary to take particular care in interpreting the international Convention referred to because of a quirk of Australian industrial history. As I said in Burazin:
“[I]t has often happened that [in Australia] award provision has originally been made for higher pay for casual, in its true sense of irregular, than for permanent work and that this was done both by way of compensation for various disabilities of such work and for the general non-availability of holiday pay, sick pay, and so on, and also as a deterrent, at least for some employers, against reliance on other than a permanent work force. However, with time the "casual" award terms thus prescribed have become by agreement the basis for what is truly permanent, though often part-time, work (part-time work, regular or irregular, itself often being discouraged and/or specially compensated in awards). Such, indeed, is the origin in my understanding of the well-enough understood Australianism ‘permanent casual’...”
In Reed, Moore J said:
“The characterisation of [an employee's] employment by either [the parties generally] or in a document, and the provisions of [a relevant Award], are simply matters to be taken into account in determining the true character of the employment.
In Australian domestic law, the expressions ‘casual employee’ or ‘casual employment’ are expressions with no fixed meanings: see Doyle v Sydney Steel Co Pty Ltd (1936) 56 CLR 545 at 551 per Starke J, 555 per Dixon J and 565 per McTiernan J, Australasian Meat Industry Employees’ Union v Sunland Enterprises Pty Ltd (1988) 24 IR 467 at 473 per Gray J and Ryde -Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385 at 389. In my view, it would be wrong in principle, to treat the character ascribed by an award to particular employment and adopted by the parties, as determining conclusively the character of the employment for the purposes of reg 30B which reflects employment described in Article 2(2) of the Convention.”
These tests are inherent in regulation 30B(3) as well as in the Convention.
In any case, in my view the result arrived at by the application of the precise provisions of regulation 30(B)(3) needs to be tested against Article 2(2)(c) of the Convention.
If, as a matter of ordinary language, and having regard to the object of the Convention to protect employees against invalid [that is, unsound or unjust: see Selvachadran v Peteron Plastics Pty Ltd (1995) 62 IR 371, Westen v Union Des Assurances De Paris (Industrial Relations Court of Australia, Madgwick J, 17 December 1996)] reasons for termination of their employment, the employee concerned cannot fairly be said to be "engaged on a casual basis for a short period", then, notwithstanding that the employee may fall within regulation 30B(3), the regulation will simply not take effect: section 170CC. For example, in this case, if the applicant had been engaged to perform work for an indefinite period for six hours per day five days per week, and did so for five and a half months (even with possible short breaks between the commencement of job clubs), it may be difficult to say that she was "engaged on a casual basis for a short period", even though she might otherwise be disqualified by regulation 30B(3) on account of the requirement that there be "a sequence of periods of employment during a period of at least six months", in the sense that there be successive periods of employment extending beyond six months as explained by Moore J in Andison.
My conclusion is that the case seems to have gone off as it did because the applicant employee did not appreciate the significance of the nature of her "engagement", and consequently her legal representative did not argue that she had never been "engaged on a casual basis for a short period." It seems to me that this is a very arguable question, and if, after proper factual examination of it, the judicial registrar should conclude that she never was in fact so engaged, then regulation 30B would fail to exclude her from the operation of the relevant provisions of the Act.
In my opinion, both parties should have the opportunity to place before the judicial registrar any additional material they wish to on that issue. In addition, as the employer was promised by the judicial registrar, the employer should have the opportunity to put any additional material before the court on any other issue that it wishes.
The application for review is upheld. I quash the judicial registrar's decision, and I remit the matter to him for further determination in accordance with these reasons and otherwise.
I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.
Associate:
Dated: 10 June 1996
Solicitor for the Applicant: Harpers Lawyers Representative for the Respondent: Chamber of Manufacturers Date of Hearing: 10 June 1997 Date of Judgment: 10 June 1997
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