Australasian Meat Industry Union of Employees (Queensland Branch) (on behalf of Koski) v Brenton Beef Processing Pty Ltd [2005] QIRC 93 (2005) 179 QGIG 456

[Extract from Queensland Government Industrial Gazette, dated 15 July, 2005, Vol. 179, No.13, pages 456-458] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Australasian Meat Industry Union of Employees (Queensland Branch) (on behalf of Damian Keith Koski) AND Brenton Beef Processing Pty Ltd (No. B245 of 2005) DEPUTY PRESIDENT BLOOMFIELD 5 July 2005 Application for reinstatement – Jurisdictional issues – Did the employee resign? – Was the employee a short-term casual? – Witness evidence – Case law – Held: (1) Employee did not resign; (2) Employee was not a short-term casual. DECISION Background On behalf of Mr Damian Koski the Australasian Meat Industry Union of Employees (Queensland Branch) (the Union) seeks Mr Koski’s reinstatement to his former employment with Brenton Beef Processing Pty Ltd (the Respondent). The application is opposed by the Respondent which argues, firstly, that it did not terminate Mr Koski in that he left employment of his own accord and, secondly, that Mr Koski was a short-term casual employee within the meaning of s. 72(1)(c) of the Industrial Relations Act 1999 (the Act). Was Mr Koski terminated or did he resign? After considering the evidence of Mr Koski (paragraphs 11 to 15 of Exhibit 1; pages 11 and 12 of transcript) as well as the evidence of Mr Anderson (pages 24 and 25 of transcript) I have concluded that Mr Koski’s services were terminated by Mr Anderson during a telephone call Mr Anderson made to Mr Koski during the afternoon of 8 February 2005. On that date Mr Anderson simply informed Mr Koski that he was being replaced on the boning team and that there was no more work available for him at the Respondent’s premises. I am further satisfied that the termination was confirmed by Mr Anderson early on the following morning when Mr Koski attempted to talk to Mr Anderson about the matter. Mr Anderson again informed Mr Koski he had been replaced and told him that if he had any problems with the decision he was to refer them to the office. Was Mr Koski a short-term casual employee within the meaning of s. 72(1)(c) of the Act? The expression “short-term casual employee” is defined by s. 72(8) of the Act as follows: “(8) In this section – short term casual employee means a casual employee, other than a casual employee who – (a) is engaged – (i) by a particular employer on a regular and systematic basis; and (ii) for several periods of employment during a period of at least 1 year; and (b) apart from the employer’s decision not to offer the person further employment, had a reasonable expectation of further employment by the employer.”. It is common ground between the parties that Mr Koski was always described as a “casual” employee and that his period of employment with the Respondent was for a period of less than one year. However, the Union argues that those two factors are not fatal to its contention that it is entitled to bring the current application on Mr Koski’s behalf. Instead, the Union argues that in determining whether a particular employment relationship is one of casual employment the Commission will examine all of the facts of that relationship and will characterise the relationship accordingly (Cetin v Ripon Pty Ltd (t/as Parkview Hotel) 127 IR 205). In this respect the Union submitted that the following elements are relevant to the determination of whether Mr Koski was a casual employee, or not:  the parties described the relationship as one of casual employment;  Mr Koski did not have any entitlement to sick leave or annual leave; -- 1 of 3 -- 2  Mr Koski was informed that he and other workers were required to attend work every day, Monday to Friday inclusive;  Mr Koski and other workers were informed that they were required to provide advance notice, preferably a week – but at least 24 hours, if they wished to take unpaid leave;  Mr Koski worked regularly for the Respondent, attending and working each day the Respondent’s establishment was open save and except for those occasions where he was too ill to attend work or where unpaid leave had been approved by the Respondent; and  Mr Koski was paid on a piece-work basis and was not paid any casual loading. On behalf of the Respondent, it was argued that Mr Koski was always employed as a casual employee “with a specific task and that specific task was piece-work that he was (to) undertake on any given day that the production was there”. After considering the evidence, the submissions and the relevant authorities I have concluded that Mr Koski was not a short-term casual employee within the meaning of s. 72(1)(c) of the Act. In Cetin (supra) a Full Bench of the Australian Industrial Relations Commission stated: “In Australian domestic law37 the words ‘casual employee’ have no settled meaning.38 The true nature of any employment relationship depends on the facts of each case. As Starke J said in Doyle v Sydney Steel Co. Ltd:39 ‘The description "casual worker" is not one of precision: it is a colloquial expression, and where, upon all the facts, there is a reasonably debatable question whether the work is casual or regular, the question is one of fact ...’ . Similarly at page 555 Dixon J said that casual employment was ‘ill defined’ and McTiernan J concluded, at page 565: ‘Now the term “casual worker” is not capable of exact definition. Hamilton LJ said in Knight v Bucknill (1913) 6 BWCC at 164, 165: “I think that ‘casual’ is here used not as a term of precision, but as a colloquial term”. Each case is to be determined on its own facts, consideration being given not only to “the nature of the work but also the way in which the wages are paid, or the amount of the wages, the period of time over which the employment extends, indeed all the facts and circumstances of the case” (Stoker v Wortham [1919] 1 KB 499 at 503, 504, per Swinfen Eady MR). The question being one of fact, the Commission's finding should not be set aside if there was evidence to support it.’ . In our view all the facts and circumstances bearing upon the nature of the engagement should be considered in determining the true character of the employment. Consistent with the approach of Moore J in Blue Line Cruises ((1996) 73 IR 420), the informality, uncertainty and irregularity of an engagement supports a conclusion that the employment has the characteristic of being casual. Conversely regular and systematic engagements with a reasonable expectation of continuing employment are usually not characteristic of casual employment. 37 We note that the meaning of ‘casual employee’ may be narrower than the meaning ascribed by domestic law: see: Konrad v Victoria Police (1999) 91 FCR 95; Arends v Department of Defence (PR935265, 28 July 2003) per Munro J, O’Callaghan SDP and Deegan C. But as that point was not argued and given our conclusion in the circumstances of this case, it is unnecessary to consider the point further. 38 Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545 at 551 per Starke J, 555 per Dixon J and 565 per McTiernan J; A/asian Meat Industry Employees’ Union v Sunland Enterprises Pty Ltd (t/as Sunland Wholesale Meats) (1988) 23 IR 467 at 473 per Gray J and Ryde/Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385 at 389. 39 Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545 at 551.”. As President Hall observed in Australian Aquaculture Pty Ltd v Banks (No. 2) 176 QGIG 67 applying the relevant indicia is not easy. “In many cases, it will be a moot point whether the parties have incorrectly characterised their relationship, or have agreed to apply to it so many of the indicia of a casual engagement that the relationship should be characterised as casual, notwithstanding express terms to the contrary.”. In this case there are 3 indicia which suggest that the relationship between Mr Koski and the Respondent was one which involved casual employment, namely:  Mr Koski was informed on the first day of his employment that he was a casual;  Mr Koski was not paid any sick leave or annual leave; and  the shift length was not fixed in that it depended upon the number of head of cattle to be processed and whether there were any equipment breakdowns. The indicia pointing away from a casual employment relationship are: -- 2 of 3 -- 3  Mr Koski (and other employees) were expected to be at work every day, Monday to Friday, unless they were advised in advance that there was no cattle available for processing (this happened only rarely);  Mr Koski (and other employees) were expected to phone in prior to starting time to inform management if they were not going to attend for work because of illness;  Mr Koski (and other employees) were required to provide advance notice, preferably one week – but at least 24 hours, if they wished to take any unpaid leave;  Mr Koski was not paid any casual loading;  Mr Koski understood that if he did not attend for work he would be replaced on the boning team;  Mr Koski had expectations of on-going employment;  Mr Koski understood that being employed “on a casual basis” meant daily hire; and  Mr Koski understood that he did not have the right to cease work at any time during the day but required permission to be allowed to do so. When considered in totality Mr Koski’s engagement lacks the informality, uncertainty and irregularity characteristic of being casual. Instead, it was expected of him that he would: report for work every day; telephone prior to the start of shift if he was ill; and, program any absences well in advance. These expectations are totally at odds with, and point away from, the relationship being one of casual employment. In all of the circumstances I have concluded Mr Koski was not a short-term casual employee within the meaning of s. 72(1)(c) of the Act. Summary The Respondent’s jurisdictional points, namely, that Mr Koski resigned his employment and that he was a short-term casual employee within the meaning of s. 72(1)(c) of the Act, are rejected. Accordingly, the Union is entitled to pursue its argument that Mr Koski was unfairly dismissed within the meaning of s. 73(1) of the Act. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2005 7 June Appearances: Mr C. Buckley, of Australasian Meat Industry Union of Employees (Queensland Branch), for the Applicant. Mr G. Sentinella, of National Meat Association of Australia (Queensland Division) Industrial Organisation of Employers, for the Respondent. Released: 5 July 2005 Government Printer, Queensland The State of Queensland 2005. -- 3 of 3 --