Steven McGee v Peter Barron trading as Road Trains West Pty Ltd [1995] IRCA 146

IN THE INDUSTRIAL RELATIONS ) No. WI 553 of 1994 COURT OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY )

BETWEEN: Steven McGee Applicant AND: Peter Barron trading as Road Trains West Pty Ltd Respondent

BEFORE: Boon JR PLACE: Perth DATE: 12 April 1995

REASONS FOR JUDGMENT

The applicant has applied under S170EA of the Industrial Relations Act 1988 for orders for reinstatement and compensation in relation to an alleged unlawful termination of his employment with the respondent. As a preliminary point the respondent argues that the applicant is excluded from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act in that he was a casual employee engaged for a short period within the meaning of Regulation 30B of the Industrial Relations Regulations. If this court finds that the applicant was a casual employee engaged for a short period then the unlawful termination provisions of the Act do not apply to the applicant and that would be the end of the matter.

Under Section 170CC of the Act, the regulations may exclude certain specified employees from the operation of specified provisions of Division 3 of Part VIA of the Act. Regulation 30B states in part: "30B(1)[Excluded employees] 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: .... (d) a casual employee engaged for a short period within the meaning of subregulation (3)." "30B(3)[Casual employees engaged for a short period] 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 Facts and Evidence Regarding Casual Employment The applicant was born on 26 January 1958 and has worked as a driver for 17 years or more. Immediately before his employment with the respondent he was employed as a driver on an ad hoc casual basis with several different companies for about six months. Before that he was employed as a driver by Harbour Haulage. The respondent, Peter Barron, owns and operates a road transport business known as Road Trains West Pty Ltd. His equipment includes a prime mover, two trailers and a dolly (which hooks the second trailer onto the first trailer). The staff of the respondent consists of Mr Barron himself and one other driver. The business of the respondent involves making trips from Sydney to Perth. The respondent's prime client is a business known as Air Road. The respondent previously owned and operated a business known as "B-Double Express". That company had a contract with Air Road under which the respondent had regular work from Air Road. The truck which formed the main equipment of B-Double Express was involved in an accident in 1994 and was written off. Mr Barron acquired a new prime mover and formed Road Trains West. His uncontested evidence is that Air Road would not give Road Trains West a contract and their haulage agreements now operate on a week by week basis. Mr Barron's evidence was that all of the equipment of Road Trains West was on lease and insured. The equipment is valued at approximately $430,000 and its lease and insurance costs are a heavy burden to the respondent company. In an affidavit filed and sworn by Mr McGee, the applicant, he states that in the last week of July 1994, he spoke by telephone with Mr Barron. At this time Mr McGee was in Melbourne and Mr Barron was in Sydney. During the course of that conversation, Mr Barron informed Mr McGee that he had recently acquired a new truck. He states that "in that conversation and in subsequent conversations over the next two weeks, Peter led me to believe that I was to be employed by Road Trains West as the permanent driver of the truck." Paragraph 6 of the applicant's affidavit states that: "6. The terms of my verbal contract of employment with Road Trains West, as agreed between myself and Peter, were that: (a) I would drive the Road Trains West truck to Sydney and return on a weekly basis (a "trip");