Dennis Andison v Woolworths Limited [1995] IRCA 357

CATCHWORDS TERMINATION OF EMPLOYMENT - whether Division 3 applies to casual employee - whether casual must be employed for more than 6 months. Industrial Relations Act 1988 - s170CC Industrial Relations Regulations reg 30B No. NI 522 of 1994 DENNIS ANDISON - v - WOOLWORTHS LIMITED MOORE J SYDNEY 8 August 1995

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. NI 522 of 1994 ) NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: DENNIS ANDISON Applicant AND: WOOLWORTHS LIMITED Respondent JUDGE: Moore J PLACE: Sydney DATE: 8 August 1995 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The orders made by the Judicial Registrar on 31 March 1995 are revoked. 2. The application under s170EA by Mr Dennis Andison is dismissed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. NI 522 of 1994 ) NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: DENNIS ANDISON Applicant AND: WOOLWORTHS LIMITED Respondent JUDGE: Moore J PLACE: Sydney DATE: 8 August 1995 REASONS FOR JUDGMENT This is a review under s377 of the Industrial Relations Act 1988 ("the Act") concerning the determination by a Judicial Registrar of an application under s170EA of the Act. That application had been made by Mr Dennis Andison who claimed the termination of his employment by Woolworths Limited on 24 June 1994 was in contravention of provisions of Division 3 of Part VIA of the Act. The review raises one issue only. It is common ground that Mr Andison was employed as a casual employee and that his employment had commenced on 25 May 1994. He was thus employed by Woolworths Limited for a period of less than six months. The issue is whether, in those circumstances, the provisions of Division 3 had any application to his employment. This issue turns, in part, on the construction of reg 30B of the Industrial Relations Regulations. Section 170CC of the Act enables specified employees to be excluded by regulation from the operation of specified provisions of Division 3. That may be done only if the exclusion is permitted by paras 2, 4 or 5 of Article 2 of the Termination of Employment Convention, 1982 which is schedule 10 to the Act. Further, if it is an exclusion permitted by para 2, it is to be limited in such a way as to provide adequate safeguards as mentioned in para 3 of that Article. Article 2(2)(c) identifies as a category of employee who may be excluded from the operation of the provisions of the Convention, "workers engaged on a casual basis for a short period". Plainly regulation 30B was, in part, intended to exclude employees to whom that provision of the Convention related. At the time Mr Andison filed his application under section 170EA reg 30B relevantly provided: "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) subject to subregulation (2), employees engaged under a contract of employment for a specified period of time; (b) employees engaged under a contract of employment for a specified task; (c) employees serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period, as the case requires: (i) is determined in advance; and (ii) is reasonable, having regard to the nature and circumstances of the employment; (d) casual employees engaged for a short period within the meaning of subregulation (3). (2) Paragraph (1)(a) does not apply to an employee engaged under a contract of a kind referred to in that paragraph if a main purpose of the employee's engagement under a contract of that kind is to avoid the employer's obligations under Subdivision B, C, D or E of Division 3 of Part VIA of the Act. (3) 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. (4) For the purposes of s170CC of the Act, casual employees (not being casual employees of a kind referred to in paragraph (1)(d) are excluded from the operation of sections 170DB, 170D and 170EF and Subdivisions D and E of Division 3 of Part VIA of the Act." It can be seen from reg 30B(3) that casual employees are to be treated as engaged for a short period, and thus excluded from the operation of Division 3, if they have been employed in a particular way. The provision of reg 30B(3)(a) and (b), are, in my opinion, plainly cumulative. However, for present purposes, it is only necessary to address the provisions of para (a). The construction advanced by Mr Andison and accepted by the Judicial Registrar was that para (a) was satisfied if a casual employee was engaged in circumstances where it could thereafter be expected that the employee would work for a period of at least 6 months. Thus Division 3 might apply to a casual who had worked only a short period over a period of substantially less than six months. Woolworths Limited contends that on its proper construction, para (a) refers to casual employees who have, in fact, been employed on a regular and systematic basis for 6 months or more. Support for the first construction of para (a) is said to be found in the use of the word "engaged" which might be thought to focus on the time of initial employment and the period of employment which was likely to follow. While the use of the word "engaged" does provide some limited support for this construction of para (a), it is not, in my opinion, what the paragraph means. The paragraph requires satisfaction of the condition that there has been employment on a regular and systematic basis for periods of employment during a period of at least 6 months. That characteristic of the employment of a casual will only be apparent after 6 months has elapsed from initial employment or engagement. The word "engaged" may have been used because of the settled legal principle that a casual employee is engaged on a separate contract of employment for each discreet period of casual employment. Thus the paragraph contemplates the possibility of a number of engagements during the period of 6 months. In my opinion the regulation was intended to confer the rights arising in Division 3 on casual employees who have already worked on a regular and systematic basis for six months or more and not confer them on casual employees who have not. This construction of the regulation is consistent with the explanatory statement issued by the Minister for Industrial Relations: see s15AB of the Acts Interpretation Act 1901. That explanatory statement contains the following paragraph: "Sub-regulation (3) provides that a casual employee is taken to be engaged for a short period unless they have been engaged on a regular and systematic basis over a period of at least 6 months, and the employee has a reasonable expectation of continuing employment (or would have had such an expectation, but for a decision to terminate the employment)." (emphasis added) It appears that the policy of the regulation was to confer on a limited class of casual employee the rights arising in Division 3. This construction of reg 30B has either been determined or assumed in a number of judgments of Judicial Registrars: see Alex Hille v Bendix Mintex Pty Ltd, 22 March 1995, Judicial Registrar Murphy; Steven McGee v Peter Barron trading as Road Trains West Pty Ltd, 12 April 1995, Judicial Registrar Boon; Beth Susan Fowler v Automated Surveys Pty Ltd, 26 May 1995, Judicial Registrar Boon; Timothy Nicholas Stone v Australia Post, 31 May 1995, Judicial Registrar Tomlinson; Mary Caroline Smith v Kelinda Pty Ltd, 4 April 1995, Judicial Registrar Boulton; and Marston v Ausdoc Group Limited, 30 May 1995, Judicial Registrar Chancellor. The application for review was filed out of time and an application is made for an extension of time for the filing of the application for review: see Winter v Australian National Hotels Pty Ltd 22 June 1995, Northrop J, for a discussion of the relevant principles. It is unnecessary to detail the entire history of the matter save to note that while orders were made on 31 March 1995 and some reasons for judgment were then given in transcript, the complete reasons for judgment were not published till 23 May 1995 and not provided to the respondent till 9 June 1995. An application for an extension of time for filing the application for review was made within twenty one days of the making of the initial order, that is, 31 March 1995. Counsel for Woolworths Limited submits that the course it adopted was an appropriate one. Woolworths Limited was not aware of the reasons of the Judicial Registrar in their final form and it was thought to be inappropriate in those circumstances, to file the application for review itself. I accept this submission. I extend the time for filing the application for review to 29 June 1995 which is the day on which it was filed. It would be apparent from my reasons to this point that reg 30B denied to Mr Andison rights that might otherwise have been conferred by Division 3 of Part VIA if his employment had been for a longer period. The Judicial Registrar was in error in declaring that his termination contravened provisions in that Division and in ordering the payment of compensation. I revoke the orders made by the Judicial Registrar and dismiss the application under s170EA. Associate: Dated: APPEARANCES Counsel for the Applicant: Appeared in Person Counsel for the Respondent: Mr Warren Solicitor for the Respondent: Farmer Campbell and Edmunds Dates of Hearing: 1 August 1995