Eldridge and Australian Services Union v Hamet Pty Ltd [1996] IRCA 122

DECISION NO: 122/96 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 4957 of 1995 B E T W E E N : MICHELE MARY ELLEN ELDRIDGE and AUSTRALIAN SERVICES UNION Applicant AND HAMET PTY LTD Respondent Before: Judicial Registrar Murphy Place: Melbourne Date: 4 April 1996 REASONS FOR JUDGMENT Lawyers make their bread and butter drafting agreements for other people. This proceeding would not be before the Court if the respondent, a solicitor's service company, had reduced its employment agreement with the first applicant to writing. The primary defence of the respondent to the applicant's claim for a remedy under Division 3 of Part VIA of the Industrial Relations Act ("the Act") was that the applicant was excluded from the Act pursuant to s170CC because she was "engaged under a contract of employment for a specified task" (Regulation 30B(1)(b)). Background The respondent is the service company of the firm Andrew Senia & Associates, barristers and solicitors, of Geelong. The principal of the firm is Andrew Mark Senia, who is also a director of the respondent. In late 1993 Mr Senia fell ill and since that time has confined his involvement in the practice to attending on Monday and Friday afternoons and an hour or so on Wednesday morning. In March 1995 another Geelong solicitor, Mr Frank Vinci, was practising as a sole practitioner under the firm name "Fallaws". Mr Vinci's service employed the applicant as a bookkeeper/administrator. It also employed a secretary, Ms Maggie Barbero, as well as a law clerk, and Mr Vinci's spouse in a part-time capacity. Mr Vinci, who had been an employee of Mr Senia's about ten years previously, fell into financial difficulties and approached Mr Senia with a request that he close down his firm and join Andrew Senia & Associates as an employee solicitor. At that time Mr Senia's firm was also going through troubled times but Mr Senia agreed that Mr Vinci join him as an employee solicitor. At that time the professional staff of Andrew Senia & Associates consisted of Mr Senia, and an employee solicitor, Mr Mitchell. A meeting was arranged between Mr Senia and Mr Vinci and their respective accountants. It was agreed that only Mr Vinci and his secretary, Ms Barbero, would be employed by Mr Senia. The other staff were to be paid out by the liquidator of the Fallaws service company. The applicant said that she was aware that she was to be retrenched by Mr Vinci. Exhibit R12 records that the applicant was paid by Mr Vinci's service company until 23 March 1995. Mr Vinci gave evidence that there was no agreement between the parties as to the transfer of other staff. He was not party to any conversation in which the applicant joined the respondent. Mr Senia gave evidence of a conversation with the applicant around this time in which he said he was "sorry he couldn't employ her". He maintained that the applicant was well aware that she was not going to work for him. The applicant was unable to recall this conversation. The applicant is engaged by the respondent The transfer of Mr Vinci to the practice of Andrew Senia & Associates occurred in haste. Ms Miriam Williams, Mr Senia's office administrator, said that Mr Vinci arrived with a van full of files, cabinets and the paraphernalia of a legal office. The applicant also arrived with Mr Vinci. She is an experienced legal bookkeeper/administrator who had been working for Fallaws for some years. The applicant commenced work at the respondent's office on 15 March 1995. She was occupied in administering the transfer of Mr Vinci's trust account ledgers across to Andrew Senia & Associates and forwarding out to clients the relevant authorities to allow this to be done. At the end of the second week at the respondent the applicant complained to Mr Senia that Mr Vinci was not paying her. In cross-examination the applicant admitted that Mr Senia said he could give her work transferring the deeds and trust account across. Mr Senia gave evidence that he asked the applicant whether she would like to stay for a short while. He told the applicant the job would only last a few weeks and was "not a permanent job". Mr Senia said the applicant accepted the position on that basis. The applicant said her position was to be responsible for the strongroom packets, to organise the transfer of trust monies, and the transfer of authorities for the two thousand clients that Fallaws had either trust monies or deed packets for. Mr Senia said that his motivation for employing the applicant was that he felt sorry for her. He was at the time under the mistaken belief that her husband, with whom he had previously been acquainted, was dead. Mr Vinci said he was aware from Mr Senia that the applicant was only to be with the respondent for a short time. Ms Williams, the office administrator, said she was told by Mr Senia that the applicant was "coming to join the team". She was to be paid as a deeds clerk and she would be handling the transmission of files and the transfer of clients. The applicant commenced duties working at a temporary desk near the ladies toilets. Later she moved to the front desk for some weeks, then finally moved to the staff kitchen where she could be near the strongroom. At around the time the applicant commenced with the respondent, the secretary for the employee solicitor left. The office junior was promoted to replace her so in late March the office did not have an office junior. The staff at the respondent had regular minuted (Exhibit R7) staff meetings. At the meeting on 29 March 1995 the applicant was welcomed. The minutes record: "First priority is to get the signed authorities back and then for (the applicant) to sort out the strong room." Further the applicant was to do the "mail and banking and any other rounds.... (Mr Senia) to look into employing another junior..." The applicant said she "felt pressure on to do the mail". The applicant's duties thus became mail at the beginning and end of each day, rounds, banking, and processing of authorities. The minutes record that she was up to the letter "J" in the authorities by 21 June. Mr Senia regularly requested up-to-date reports on the authorities. Written updates dated 28 June, 9 and 22 August, were in evidence. In the report of 9 August the applicant presented some suggestions to complete "the task". Mr Senia did not accept her recommendations. On 22nd August the applicant provided Mr Senia with a list of her duties (Exhibit R6). That recorded her mail and rounds duties, and her duties obtaining authorities from Fallaws clients, and checking deeds packets. Mr Senia said he sought details of the duties from all staff as he was unfamiliar with their precise duties due to his limited attendance in the office. By early September the applicant had between 1-2 weeks work to complete the transfer of authorities from Fallaws. In late July the applicant sought a couple of days off to assist her daughter after a birth. She received no response to the request. She then wrote a letter seeking the leave, and also leave at Christmas. She received no response from Mr Senia. She took the leave in early August but was not paid for it. The engagement ends In August the applicant was advised that she was to have minor surgery on 13 September. She said she raised the matter with Mr Senia about that time. He was unable to recall this. In early September the applicant again advised Mr Senia that she needed three days sickleave for the surgery. Mr Senia's response had been unsympathetic. He had then said he "had to let her go". He asked the applicant what date was suitable for her to finish and the applicant had then mentioned going into hospital the following week. The day before her admission, 12 September, was agreed upon. Mr Senia's version of the cessation of employment was that in the period prior to 6 September he had been pressing the applicant to complete the authorities. He said he had also told the applicant he was in financial difficulties and would not be able to keep the applicant on much longer. On that day he had told the applicant that he had to let her go. It was then that she raised the fact that she had to go into hospital and the date for her departure was the subject of an amicable agreement. At that stage the applicant had 1-2 weeks work left completing the authorities. When the applicant ceased employment she was paid nine days holiday pay and one day's sick pay. In July Ms Williams had interviewed two candidates for the position of office junior, and one was re-interviewed in early September. An office junior was engaged to commence duties a couple of days after the applicant ceased work. The authorities were completed by the other staff members. Findings on the subject of the employment contract The first issue that must be resolved is whether the applicant is excluded from the Act because she was engaged for a specified task under Reg.30B(1)(b) of the Industrial Relations Regulations. This provision was considered in Drury v BHP Refractories Pty Ltd (unreported, Wilcox CJ, 16 June 1995) : "The words "for a specified task" qualify the words "contract of employment". The contract of employment must be for a specified task; it must be a contract under which the employee is to carry out a specified task. The words "for a specified task" have nothing to do with the employer's task, or project. This seems clear as a matter of grammar and makes sense in policy terms. One can understand a view that the protections provided by Division 3 of Part VIA should not be available to people who undertake only a specified task. Especially after the task is completed, it would be anomalous to restrict the employer's right to terminate the contract of employment." These comments require the Court to consider whether, looked at objectively, the applicant's contract of employment was for her to carry out a specified task, or was, in contrast, not so confined or qualified. Support for this approach can be gained from a consideration of the meaning of the word "task". It has connotations of a finite duty. "Task" is defined in the Macquarie Dictionary as "1. a definite piece of work assigned or falling to a person; a duty. 2. any piece of work." To put the question another way: if the applicant was not engaged for a specified task, on what basis was she engaged or employed? Here the "factual matrix" or background to the engagement of the applicant is consistent with the engagement being for a specified task. I am satisfied that the applicant was at first told that she would not be engaged by Mr Senia. She was to be retrenched by the Fallaws service company. I am satisfied that it was only after she found that Mr Vinci was not paying her for her duties in transferring over the trust account that she approached Mr Senia and he then offered her a position. I am satisfied that at that stage Mr Senia had only a limited need for the applicant. His practice was suffering financial difficulties and had no proper office accommodation for the applicant. She was not familiar with his practice's computer system. The practice had its own administrator. His firm's deeds were controlled by his own secretary and a deed's clerk. On the other hand his employment of Mr Vinci meant that there had to be a transfer of the trust monies, clients and deed packets across from Fallaws to Andrew Senia & Associates. This was a "definite piece of work" that had to be done. The applicant was eminently suited to perform the work. Turning to the oral evidence the applicant could not dispute in cross-examination that she had been told by Mr Senia that he couldn't offer her permanent employment. She agreed that Mr Senia said he could give her work "transferring the deeds and the trust account". This evidence is consistent with what Mr Vinci said he was told by Mr Senia. It is consistent with Ms Williams telling the applicant that her position was temporary. The applicant agreed in cross-examination that "getting the authorities" done.... "was the basis of the engagement". Payment to the applicant at the rate for a deeds clerk is consistent with that being the focus of the "definite piece of work" for which she was engaged. The applicant did not really assert in her evidence that when she commenced she had been engaged for other than the above transition duties. What she relied on was the fact that her duties subsequently were wider and included the mail and rounds duties. She also said that she "felt" she had a permanent position because of the volume of work. She said "there was more than enough to do". She also relied on a proposal, recorded in the minutes on 14 June 1995, that she was to learn the computer and computerise the strongroom records. Further she said that Mr Senia had discussed involving her in the administration of the practice by way of assisting him with marketing. The applicant denied being aware of any agreement that her position was of a limited nature. Focusing on the position of the parties at the time the applicant came to an agreement with the respondent, I am satisfied that the respondent's construction of the agreement is to be is preferred over that of the applicant. I therefore find that shortly after 15th March 1995 the applicant was retained by the respondent for the task of transferring the trust account, the authorities and deeds packets of the Fallaws clients. That was the subject of the agreement and was her "specified task". She admitted as much in cross-examination. In Exhibit R2, which is an update to Mr Senia of the position regarding "Strongroom Authorities", the applicant even refers to her "Plan for completing the above task". Applying the comments in Drury (above), I am satisfied that the applicant's employment agreement with the respondent from late March 1995 was for a specified task. Conversely I could not be satisfied that her engagement was other than one to carry out that specified task. It would be an artificial and strained interpretation of the evidence to find that the applicant was engaged for any position other than one referable to the finite task of transferring to the respondent the Fallaws trust account and authorities. That was what the applicant was doing when she sought to raise the issue of payment with Mr Senia. That was what she was able to do and that is all that Mr Senia needed the applicant to do. I therefore accept his evidence and find that the applicant's engagement was for a specified task. Did the nature of the engagement change? The alternative submission of the applicant was that even if the initial employment contract was for a specified task, this contract was later the subject of a consensual variation such that in September 1995 it was not such as to fall within the terms of Reg.30B(1)(b). Like many informal contracts of employment it is clear that when the applicant agreed to be engaged by the respondent for her "specified task" a number of other issues were not the subject of any agreement between them. An important one was whether the applicant would perform any other duties or tasks for the respondent while she was completing her specified task. As events unfolded she did perform other duties and it is now necessary to determine their effect on the original employment contract. I am satisfied that, commencing from 29 March the parties agreed that until the respondent obtained the services of an office junior, the applicant would perform the office junior duties. The applicant then performed the mail and rounds duties for the duration of her employment. It was common ground that her diversion into these lesser duties reduced the time that she had available to carry out the authorities task and resulted in it taking a lot longer than either party envisaged when the initial conversation occurred shortly after 15 March 1995. It is significant, however, that Mr Senia continually asked the applicant about her progress in her task. Further, while the applicant remained employed, the respondent was taking action to employ an office junior. The other duties were thus always, in the contemplation of both parties, of a temporary nature. Suggestions of permanent changes to the duties were slight. Counsel for the applicant pointed to the reference in the minutes to the applicant computerising the strongroom. He also pointed to the discussions between the applicant and Mr Senia to the effect that she may assist him in marketing. I am satisfied that while these two issues were discussed, nothing was concluded. I am satisfied that any other proposed duties of the applicant were only contemplated when the applicant had completed her specified task. Such a conclusion is consistent with the temporary nature of the applicant's work locations in the office. It is also reinforced by the very cursory references to the applicant in the minutes. I am satisfied that the applicant never really became part of the respondent's staff establishment. Her duties doing the rounds were to fill-in only. Her substantive duties were the authorities and she reverted to those when other office tasks allowed. She brought this problem to the attention of Mr Senia when he pressed her as to progress. The fact that both parties were content, on a short term basis, for the applicant to perform what were, in effect, the duties of an office junior, concurrently with her specified task, did not alter the true nature of the applicant's engagement. From this I find that at no stage did the applicant's substantive position or agreement change from being retained for a specified task to one of a different nature, or character. Her substantive functions and duties always remained those associated with the authorities. The essential character of her retainer remained unchanged. Given the limited and temporary nature of the other duties I am not satisfied that they altered the essential character of her employment contract. It remained to carry out a specified task and at no time did the parties agree to extend the employment relationship beyond the completion of the "definite piece of work" that was the essential basis of the employment contract. It follows that the respondent has made out its argument that the applicant is excluded from the operation of Part VIA of the Act by reason of Regulation 30B(1)(b). The application must be dismissed. MINUTES OF ORDERS THE COURT ORDERS: 1. The application is 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 nine (9) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy. Associate: Dated: 4 April 1996 Solicitors for the Applicant: Holding Redlich Counsel for the Applicant: Leigh A Johns Solicitors for the Respondent: Andrew Senia & Associates Counsel for the Respondent: B. Lacy Date of hearing: 27 February 1996 Date of judgment: 4 April 1996