Muhamed Cosatovic v National Tool and Die Pty Ltd [1995] IRCA 678

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 4931 of 1995 B E T W E E N: Muhamed COSATOVIC Applicant

A N D NATIONAL TOOL & DIE PTY LTD Respondent REASONS FOR DECISION (delivered ex tempore) 20 December 1995 PARKINSON JR This is my decision in relation to a preliminary jurisdiction point raised by the respondent in a notice of motion dated 14 December 1995. The respondent by the notice of motion sought that the application be dismissed. It was submitted that there was no employment contract effective to bring about employment for the purposes of the application of the Industrial Relations Act 1988. It was submitted that the terms of the contract were insufficiently certain to result in a binding agreement for employment. In so far as this aspect is concerned, I am satisfied on the evidence of Mr Nuss and Mr Cosatovic that this was not the case. I am satisfied that there was as at the date on which Mr Cosatovic was informed that the employment would not proceed, which was sometime in late May 1995, a binding contract of employment between the respondent and the applicant, and that a time certain for commencement of the employment had been agreed. Consequently, I decline to dismiss the application on the ground set out in the notice of motion dated 14 December 1995. However this is not the end of the jurisdiction questions which arise in this application. During the course of the proceedings it became apparent to the court that the applicant's employment was subject to a 3 month probationary period. I raised this issue with the parties and asked them to address me in relation to this matter. I am satisfied that this probationary period was in the knowledge of the applicant. This is evidenced by his signature on the application for employment which was exhibit R5 in the proceedings. I am satisfied that the applicant completed that document as to relevant details concerning his employment history and qualifications and certificates. I am satisfied that the applicant acknowledged the terms and conditions upon which any offer of employment may have been made. Paragraph 7 on page 1 of that Exhibit contains an express term of the employment as being subject to a probation period of 3 months, and I am satisfied that the probation period had been determined in advance of any employment being effected, as is evidenced by its inclusion on the application for employment form. I am also satisfied, having regard to the evidence of Mr Bibby as to the circumstances of the respondent and its usual practice in relation to probationary periods, that the period set was reasonable. The nature of the work to be done for the respondent required levels of skill, accuracy and diligence which, having regard to the training period anticipated by the respondent, necessitated a reasonable period for assessment of those qualities. Mr Bibby also gave evidence as to the usual practice in the industry of applying a 3 month probation period, whether actually as in the respondent's case , or by default by the hire of short term casual employees for a period up to 3 months in accordance with the provisions of the relevant Federal Award. In the circumstances of this matter I am satisfied that the period set for probation was reasonable. In view of my findings in this regard, S170CC and Regulation 30B(1)(c) of the Industrial Relations Act 1988 operate to exclude the application made pursuant to s170EA from the jurisdiction of this court. Consequently the application made on 22 September 1995 is dismissed. In so far as any order for costs is sought pursuant to s347 of the Act, such order is refused. This is because the notice of motion filed seeking the dismissal of the application did not found the basis upon which I decided that there was no jurisdiction in the court to proceed. The applicant being in person, in the absence of the probationary point being brought to his attention by way of a notice of motion, could not reasonably have been expected to be aware or on notice of such a point. Further my decision in relation to the probationary point depended to some extent upon it being established that the probationary period was reasonable in the circumstances. The order of the court is that the application made pursuant to s170EA of the Industrial Relations Act 1988 be dismissed. I certify that this and the preceding two pages are a true copy of the reasons for decision of Judicial Registrar Parkinson. Associate: Dated: 20 December 1995 APPEARANCES Applicant in person Solicitors for the respondent: Freehill Hollingdale & Page Counsel appearing for the respondent: Mr S Wood Date of hearing: 20 December 1995