Robert John Larcombe v Nylex Corporation Limited [1995] IRCA 521

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 3812 of 1995 B E T W E E N : ROBERT JOHN LARCOMBE Applicant AND NYLEX CORPORATION LIMITED Respondent Before: Judicial Registrar Staindl Place: Melbourne Date: 26 September 1995 REASONS FOR DECISION On 15 February 1995 Robert Larcombe ("the Applicant") commenced employment with Nylex Corporation Ltd. He signed a letter of appointment which confirmed his position as a "Casual Assembly Process Operator". The letter set out that as a casual employee his employment could be terminated at 24 hours notice and that after 6 months of consistent casual employment he may be offered a permanent position. His wages included a 20% casual loading. The Applicant also signed an application to join an occupational superannuation fund in which his employment is described as casual. On 30 June 1995 the Applicant's employment was terminated. He filed an application in this Court pursuant to s.170EA. The Respondent filed a Notice of Motion seeking that the application be disposed of summarily on the basis that "the Applicant was a casual employee as defined in Regulation 30B(1)" and was therefore outside the Court's jurisdiction. Two questions arise for consideration: firstly whether the Applicant is covered by Regulation 30B(1) and secondly whether it is appropriate to make an order to dispose of the application summarily (although the answer to the second question is intertwined with the first question). Casual Employment The primary question in this case is whether or not the Applicant was a casual employee. The Respondent argued that he was employed as such under his letter of appointment and that he was paid as such, and nothing had occurred to alter this status. Accordingly he was prohibited from bringing an application under s.170EA due to the operation of s.170CC together with Regulation 30B. Section 170CC provides that the Regulations may exclude specified employees from the operation of Division 3 of Part VIA of the Act. Regulation 30B excludes casual employees engaged for a short period. Under Sub-Regulation 30B(3) 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 Respondent argued that the Applicant was a casual employee who had been employed for 4˝ months only. Therefore the Court lacked jurisdiction to hear his application. An affidavit sworn by Paul Gottlieb Simon was filed on behalf of the Applicant. Paragraph 4 of the affidavit reads as follows (and was not disputed by the Respondent): "The Applicant commenced employment with the Respondent on 16 February 1995. From the time he commenced work with the Respondent he worked five days a week and occasionally six or seven days per week. His starting time was initially 3.30 p.m. until 3.30 a.m. and then altered to 5.00 p.m. to 5.00 a.m. He had to do a minimum of 8 hours work per day. These times did not vary except when he worked overtime. On average he worked 2 or 3 hours overtime each day of the week. He worked Monday to Friday and most Saturdays with the occasional Sunday." It was argued on behalf of the Applicant that this pattern of work was not that of a casual employee. It was said that Regulation 30B did not apply to his employment because he was not truly a casual employee. The description of the Applicant as a casual employee in his letter of appointment and superannuation fund application was only one of the relevant indicators in deciding whether or not the Applicant was a casual employee. However such a description could not operate to change the true nature of the Applicant's employment: if he was not truly a casual employee then his description as such did not change that status. It seems to me that there are a considerable number of other factors which may be relevant in deciding the Applicant's employment status, and some of these factors have not been adverted to thus far. The affidavit material revealed that the Applicant was paid pursuant to the Rubber, Plastic and Cable-Making Industry (Consolidated) Award 1983 but I have not been provided with a copy of that award. I do not know whether it has any restrictions on the use of casual employees on any particular definition relating to casuals. A copy of the relevant enterprise agreement was provided: this is known as the Nylex Corporation Ltd, Wells Park, Frankston, (Enterprise Bargaining) Agreement 1993. Clause 7 relates to the agreed changes for improved performance and flexibility. Under sub-clause 7.11 one of the changes is that the Respondent can "continue to utilise casuals to cover peak demand periods. Casuals may be employed for up to six months." There was no evidence before me to suggest that the period of the Applicant's employment was one of peak demand. There are a number of other factors which may be relevant to deciding the question of casual employment. These factors may vary from industry to industry and case to case. It is sufficient to say at this stage that I do not think I should decide the question without there being a full opportunity to present evidence. This should not be done under Order 19 Rule 2 but at the substantive hearing of the matter. Summary Disposal of an Application The power to summarily dispose of an application is to be found in order 20 of the Court's rules. It is clear that this power should only be exercised with "exceptional caution". See General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ. In Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 Dixon J said: "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." See also Taylor v Janome Sewing Machine Co. (Australia) Pty Ltd Keely J (Unreported) 19 September, 1994, VI 551 of 1994. The onus for the Respondent is a high one. It has been said that it would be necessary for the Respondent to show that the cause of action was so obviously untenable that it would not possibly succeed [see Barwick CJ in General Steel Industries (above)]. For the reasons already discussed the Respondent has failed to make out such a case. This matter will be listed at the next available directions hearing. The Respondent's Notice of Motion filed 24 August 1995 should be dismissed. I decline to make any order as to costs. MINUTES OF ORDERS THE COURT ORDERS: 1. That the Respondent's Notice of Motion be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment of Judicial Registrar Staindl. Associate: Dated: 26 September 1995 Solicitors for the Applicant: Messrs Macpherson & Kelley Counsel for the Applicant: Mr O'Grady Solicitors for the Respondent: Messrs Clayton Utz Counsel for the Respondent: Mr P Harris Date of hearing: 12 September 1995 Date of judgment: 26 September 1995