DECISION NO: 211/96 CATCHWORDS INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - whether termination at the initiative of the employer - whether CASUAL EMPLOYMENT Industrial Relations Act 1988, ss 170EA, reg. 30B(1), 30B(3) Quinn v Jack Chia (Aust) Ltd (1991) 43 IR 91 MICHAEL GLENN RIGBY v MARITIME MOTORS PTY LTD VI 5290 of 1995 Before: PARKINSON JR Place: MELBOURNE Date: 20 MAY 1996 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 5290 of 1995 B E T W E E N: Michael Glenn RIGBY Applicant A N D MARITIME MOTORS PTY LTD Respondent REASONS FOR DECISION 20 May 1996 PARKINSON JR This is an application made pursuant to S170EA of the Industrial Relations Act 1988. The applicant was employed by the respondent as a driver. He was employed after responding to a newspaper advertisement placed on 26 August 1995. He was interviewed for employment by Mr Allen of the respondent . The employment was confirmed and he commenced work on 30 August 1995 as a driver performing freight services from a depot operated by a client of the respondent at Tullamarine. Arrangements with the client altered and the applicant was no longer required to perform duties at the Tullamarine location. On 15 September 1995 he was offered a transfer to the Footscray depot of the respondent which he accepted, and he commenced to perform driving duties out of that depot on the following Monday. It should be noted that I have considered the question of whether there was at this point a new contract of employment entered into between the parties in accordance with the principles discussed in Quinn v Jack Chia (Aust) Ltd (1991) 43 IR 91. I have decided, having regard to the nature of the duties to be performed and the wage rate remaining the same, that there was not a new agreement, but a variation to the terms of the existing agreement. On 27 September 1995 the applicant was informed by the respondent's Footscray operations manager, Mr Raymond Moore, that he was not required to attend work the following day as their was not enough work to perform. The applicant queried why he was being stood down and was informed that as a casual employee he could be stood down as required. The applicant disputed that his employment status was casual. After some days of being stood down the applicant attended for work on 13 October 1995 and various discussions ensued, with the applicant contending that his employment was permanent, not casual. In the course of what ultimately became heated discussions as to the terms of the applicant's engagement, Mr Moore advised the applicant "now you don't even have a casual job". I am satisfied that Mr Moore terminated the employment of the applicant and did so as a result of the disagreement between them as to the terms and conditions of the applicant's employment. I am satisfied that, subject to the other jurisdiction matter raised by the respondent, there was a termination of employment at the initiative of the employer on 13 October 1995. I turn now to consider the outstanding jurisdiction issue. The respondent submitted that the court by way of the operation of Regulation 30B of the Act was precluded from hearing and determining the application. Regulation 30B(1) provides: 30B(1) 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: (a) ... (aa) ... (b) ... (c) ... (d) a casual employee engaged for a short period within the meaning of subregulation (3). Subregulation (3) provides: 30B(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 of the employer to terminate the employee's employment, would have had, a reasonable expectation of continuing employment by the employer. The respondent contends that the applicant was hired as a casual employee, and that the nature of the employment arrangements being less than six months precluded the S170EA application. The applicant contends that he was not engaged as a casual employee and that the terms of the engagement were permanent. In this regard his evidence was that at no time in the course of the initial employment interview or subsequently on transfer to the new location was he told that his employment was on a casual basis. His evidence was that he applied for a permanent position with the respondent and that he was engaged on this basis. The evidence of the applicant was that he knew he was in receipt of an amount above the ordinary rate of pay for the type of work he was doing, although no payslips or wages records in relation to payments made were tendered which would establish that such a loading was identified to him or brought to his attention. The evidence of the respondent is that it used the system of engagement on a casual basis for two purposes. The first was to ensure that both parties were satisfied with the work and its terms, and that in the event that this was so, casual employees were usually appointed to the next available permanent position. The evidence was that this process of hiring employees was one which had been operated by the respondent for many years. The evidence of Mr Allen was that this was how he always engaged employees. His evidence was that he informed the applicant of the initial terms of the hire as being casual at the interview he held with the applicant prior to the employment commencing. Whilst I accept the applicant's evidence that the position he originally applied for was permanent, and whilst it is clear from the terms of the advertisement that no mention of casual employment was therein made, the history of the employment arrangements in the workplace, together with the additional payments made to the applicant, tend to support the evidence of the respondent as to the terms upon which the employment was offered. The respondent was bound by the provisions of the Transport Workers Award 1983, an Award of the Australian Industrial Relations Commission. The terms of the award governed the employment of the applicant. The award provisions, whilst not definitive for the purposes of the application of Regulation 30B, are of assistance in the exercise of characterising the nature of the engagement as either casual or permanent. It is upon that basis that I have considered the operation and application of the Award. The provisions governing employment on a casual basis are set out in that Award. They include by operation of Clause 9 (b) the payment of a loading of 20 per cent on the hourly rate of pay, together with a lack of entitlement to various conditions including sick leave and annual leave. Clause 43 provides for superannuation obligations in respect of eligible employees. There is nothing before me to suggest that the applicant, if a casual employee, would not be eligible for the contributions made on his behalf by the respondent. Further, the clause defines an eligible employee as being an employee engaged under the terms of the Award. Clause 8 - Definitions - defines a casual employee as being an employee who is "engaged and paid as such". Clause 9 - Contract of Employment - provides: (a)(i) an employer shall definitely state to an employee at the time of engagement whether such engagement is on weekly hiring or on casual hiring. Failing such statement, the employee shall be deemed to be engaged on weekly hiring. The employment arrangement, whilst clearly used as a substitute for a specified trial or probationary employment period, is in all substantive respects in accordance with the employment contract provisions in the Award. The only aspect of characterisation in doubt in these proceedings is whether the employer, to use the terminology of the Award, " definitely stated" to the applicant at the time of the hiring that he was engaged as a casual employee. I am not satisfied that the respondent in this circumstance was likely to or did in fact alter its longstanding process and procedure of advising all new employees of the initial terms of the engagement as being casual. The fact of the payment of the casual loading, and the fact of it being in the knowledge of the applicant, further assists in identifying the true nature of the engagement. I accept Mr Allen's evidence that he informed the applicant at the employment interview that he was initially being engaged on a casual basis. In so saying, it ought be noted that I found all witnesses in the proceedings to be frank in their account of the circumstances, and credible. My decision is not a finding which in any way reflects upon the credit or the applicant. He was forthcoming in all of his answers in cross-examination, and it was clear that he was genuinely attempting to assist the court. Having concluded that the terms of the engagement were that the applicant initially be employed as a casual employee, and as the employment did not extend, on a regular and systematic basis, for a period of six months or beyond, I am required to dismiss the application. The applicant is precluded by operation of Regulation 30B(1) from bringing the proceedings and I so order. I certify that this and the preceding five (5) pages are a true copy for the reasons for decision of Judicial Registrar Parkinson. Associate: Dated: 20 May 1996 APPEARANCES Applicant in person Representative for the respondent: VECCI Representative appearing for the respondent: Ms C Pugsley Date of hearing: 16 April 1996 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 5290 of 1995 B E T W E E N: Michael Glenn RIGBY Applicant A N D MARITIME MOTORS PTY LTD Respondent MINUTES OF ORDER 20 May 1996 PARKINSON JR THE COURT ORDERS THAT: 1. The applicant's application is dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules