Alex Hille v Bendix Mintex Pty Ltd [1995] IRCA 143

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2152 of 1994 B E T W E E N : ALEX HILLE Applicant AND BENDIX MINTEX PTY LTD Respondent Before: Judicial Registrar Murphy Place: Melbourne Date: 22 March 1995 REASONS FOR JUDGMENT (EX TEMPORE, REVISED FROM DRAFT TRANSCRIPT) In this notice of motion, the respondent seeks to dismiss the application on the basis that the applicant was a casual employee as defined in regulation 30B(3) of the Industrial Relations Regulations. The Respondent argues that under section 170CC of the Industrial Relations Act the applicant is precluded in making an application under Sub-Division C of Division 3 of Part VIA of the Act. The respondent relied on an affidavit sworn by Russell Stovall and two annexures thereto. The affidavit states that the applicant commenced employment with the respondent on 3 June 1994 on a casual basis for a maximum of seven months, on shifts that operated from Friday to Sunday nights. 130 casual employees were employed on the same conditions. The conditions of employment are set out in a written agreement, dated 3 June 1994 and signed by the applicant. The document indicates that his appointment period was as follows: "You will be employed on a casual basis for a period to a maximum of seven months." The rate of pay in the agreement also provides: "Your rate of pay is $10.5895 ordinary rate per hour, this rate includes casual loading." The respondent's material included a letter to the applicant which indicated that, as a result of a review of market conditions, it has been determined that the respondent must reduce the number of casual staff it was employing on weekends. It goes on to indicate that the applicant's position is one that has been determined as being redundant, effective 24 October 1994. Regulation 30B(1)(d) provides that casual employees engaged for a short period within the meaning of sub regulation (3): "are excluded from the operations of subdivisions B, C, D and E of Division 3 of Part VIA of the Act." Regulation 30B(3) provides: "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 six 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." Mr Nolan, the representative of the respondent, argued that the applicant in these proceedings did not meet either sub paragraph of Regulation 30B(3). He argued that the applicant had not been employed during a period of at least six months because at the time of his termination on 24 October he had only been employed for just over five months. I agree with his submission that sub regulation 30B(3) (a) requires that a casual employee have completed employment on a regular and systematic basis for a sequence of periods of employment during a period of at least six months at the time of the termination. Mr Nolan also argued that in any event the applicant could not meet sub regulation 30B(3) (b). He argued that by reason of the provisions of the conditions of employment, agreed to by the applicant, there could be no reasonable expectation, on the applicant's part, of continuing employment by the employer. This was because the employment period is specified as, and agreed to be, a maximum period of seven months. I also accept this submission. It is clear that the applicant, on the basis of the material before me, could not have had, in the light of the seven month maximum appointment period agreed to by him, a reasonable expectation of continuing employment by the respondent. For these reasons I allow the notice of motion, and dismiss the application. Order of the Court: 1. The Respondent's Notice of motion dated 8 March 1995 is allowed. 2. The application is dismissed. I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy. Associate: Dated: March 1995 The Applicant in person Solicitors for the Respondent: MTIA Counsel for the Respondent: Mr Nolan Date of hearing: 22 March 1995 Date of judgment: 22 March 1995