Australian Aquaculture Pty Ltd v Banks (No. 2) [2004] ICQ 35 (2004) 176 QGIG 67

67 Vol. 176 FRIDAY, 28 MAY, 2004 No. 4 ########################################################################################################################## INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission Australian Aquaculture Pty Ltd AND Gregory Francis Banks (No. 2) (No. C14 of 2004) -- 1 of 3 -- 68 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 May, 2004 PRESIDENT HALL 14 May 2004 DECISION This is an appeal against a decision of the Queensland Industrial Relations Commission, now reported at 175 QGIG 2004, awarding compensation to an applicant for reinstatement under Chapter 3, Part 2 of the Industrial Relations Act 1999 (the Act). The Commission is said to have erred in law and to have acted without jurisdiction in treating the applicant as other than an excluded employee pursuant to s. 72(1)(c). In the circumstances of the case the resolution of the question whether the applicant was an excluded employee pursuant to s. 72(2)(c) followed as a matter of course from the resolution of the question whether the applicant was a “short term casual employee” as defined at s. 72(8). Section 72(8) (materially) provides: “ ‘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.”. The Commission dealt with that issue as follows: “[14] The circumstances surrounding the Applicant’s employment lead me to the view that the Applicant was not a casual employee. He was engaged as a full-time employee to work on the construction of the project. Whilst the employment of the Applicant may have been a temporary one (i.e. until the completion of the construction of the project), that did not make the nature of his employment one of a casual employee. [15] The indicia pointing to the engagement of the Applicant being casual are as follows: • the Applicant was informed that his employment was of a casual nature; • the Applicant was paid on an hourly basis; • the Applicant was paid a casual loading on his hourly rate of pay; • the Applicant was not paid any annual leave or sick leave; and • whilst the Applicant worked on public holidays that fell on a Monday to Friday he was paid the same rate of pay that he received on non-public holidays. [16] A number of these incidents was as a consequence of the characterisation chosen by the parties i.e. that the Applicant’s engagement was as a casual employee. [17] The indicia to the contrary are as follows: • The Applicant was informed prior to commencing employment of the days of the week and the hours of each day that he was required to work. • Those days and hours did not vary i.e. Monday to Friday inclusive and 8.00a.m. to 5.00p.m. on each such day. • The work performed i.e. general labouring work connected with the construction of the project, did not vary greatly. • At the time of his engagement the Applicant had a reasonable expectation that, subject to performance issues, he would be employed at least until the completion of the construction of the aquaculture project which Mr Marchesin suggested would be late January 2004. [18] Taking into account all the circumstances of the engagement, I consider the indicia of work on regular days and regular hours per day i.e. 40 hours per week worked between the hours of 8.00a.m. and 5.00p.m. Monday to Friday, outweighs the characterisation of the relationship by the parties and the other indicia supporting the notion of casual employment. [19] I thus find that the Applicant was not a ‘short term casual employee’ and therefore is not excluded from making application for reinstatement under Chapter 3 of the Act.”. The appellant’s first point is that the Commission jumped the stile and answered the question whether the respondent was a casual employee by application of the second of the three cumulative tests at s. 72(8), i.e. by reference to the issue whether the employment was regular and systematic. The appellant complains that on the Commission’s approach the second test has no work to do. The second point developed by the appellant relates to the use made by the Commission of the decision of the Full Bench of the Australian Industrial Relations Commission in Yasmin S B Cetin v. Rippon Pty Ltd t/as Parkview Hotel (2003) 127 IR 205. The submission is that in saying that the decision was about a legislative scheme using different terminology to the Industrial Relations Act 1999, (and no more), the Commission displayed a misunderstanding of a decision which held that an earlier Full Bench decision in Bluesuits Pty Ltd t/as Toongabbie Hotel v. Graham (1999) 101 IR 28 should no longer be followed and reinstated the authority of the decision of Moore J in Reed v. Blue Line Cruises (1996) 73 IR 420. As to the first submission, the starting point is the observation of the Full Bench of the Australian Commission in AMACSU v. Auscript (1998) 83 IR 38 at 58: “We agree with the conclusion reached by the Industrial Commission of New South Wales in the Ryde-Eastwood case that there exists ‘two classes of employee colloquially described as “casual”’ that can readily be identified in industrial relations. One class having the characteristics described by Moore J in the Blue Line Cruises case, that is characterised by the ‘informality, uncertainty and irregularity’ of the engagement. The other class of casual is distinguished by a relationship in which the casual employee works a regular pattern of hours with an ongoing employment relationship”. -- 2 of 3 -- 28 May , 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 69 The passage was adopted in Bluesuits, op. cit. at 29 and by this Court in Julia Ross Personnel v. Rebecca Wain (2001) 168 QGIG 350 at 350 . On the view adopted in Rebecca Wain, ibid, at 350 that s. 73(8) is to be treated as adopting domestic law concepts, the observation indicates the a p p r o a c h t o s . 7 3 ( 8 ) . The first step is to identify the nature of the engagement at its inception. If the engagement is found to be other than a casual engagement, e.g. a fixed term engagement or an indefinite hiring, there is no need to go further. Indeed there is no legislative authority to go further. If, however, the engagement is found to be a “casual engagement” in the sense developed by Moore J, one has to go to the time of termination and enquire whether, whatever the original terms, in its performance the engagement had displayed the characteristics of an ongoing relationship, see Reed v. Blue Line Cruises Limited op. cit. at 426. The purpose of the second enquiry is to catch the case in which the informality, uncertainty and irregularity of casual employment has not been, as a matter fact, a feature of the employment because of the conduct of the parties. (That is to say, people who were engaged as casuals will be removed from the exclusion where “—the employees work pattern (turns) out to be regular and systematic”. Hamzy v. Tricon International t/as KFC (2001) 111 IR 198 at 207 (Full Court of Federal Court of Australia).That is the approach adopted by the Commission here. On the facts, the Commission found that at the point of inception the respondent “was engaged as a full-time employee to work on the construction of the project” (paragraph [14], supra). That finding, I take to be a finding that the hiring was an indefinite hiring subject to the limitation, noted at para 14, that it was capped by the duration of the project. Once that conclusion was reached, it was unnecessary for the Commission to cast its eye backwards from the point of termination and ponder whether the employment had in fact been “on a regular and systematic basis”. There was no engagement to remove from the exclusion. As to the second submission, I quite accept that the changes in the legislative scheme led the Full Bench of the Australian Commission to put entirely to one side the decision in Bluesuits Pty Limited, op. cit. and to reinstate the decision in Blue Line Cruises, op. cit. to the extent of observing that the reasoning in that case was “of assistance in construing regulation 30 B(1)(d) of the Workplace Relations Regulation”, though I note that the Full Bench refrained from dealing with the conundrum posed where domestic law and the Termination of Employment Convention 1982 are inconsistent (op. cit. at footnote 37). But that is of no moment here. The Commission did no more than draw upon the wisdom collected together in Rippon Pty Ltd t/as Parkview Hotel op. cit. in formulating the indicia to be taken into account in determining whether, at its inception, the engagement was a true casual engagement. So much appears from paragraphs [11] and [12] of the decision of the Commission (which I do not now repeat). I do not assert that the indicia are easy to apply. 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. However, this was not a difficult case. Granted the findings of fact at paragraph [17] (supra) the matter was plainly one of incorrect classification. (It is not clear what use the Commission made of the factors at the second dot point at paragraph [14]. It may be that they were treated as demonstrating that the purported agreement was not a sham or as going to the creditability of the witnesses who asserted that the agreement had been for an indefinite hiring. However, the Tribunal at first instance being presumed to be correct, I am not prepared to treat the factors as indicating a reliance upon subsequent conduct in the construction of the agreement as made). There maybe some issue as to whether Rebecca Wain, op. cit. should be reconsidered in the light of Rippon Pty Ltd t/as Parkview Hotel, op. cit. The issue was not being ventilated in these proceedings and an appeal in which a respondent acts for himself is not an appropriate vehicle for consideration about whether earlier decisions should be departed from as wrong. The issue, which would involve consideration of Queensland v. The Commonwealth (1977) 139 CLR 385 at 620 per Aitkin J and Nguyen v. Nguyen (1989-1990) 169 CLR 245 at 269, may be left for another day. I dismiss the appeal. Dated 14 May 2004. D.R. HALL, President. Appearances: Released: 15 May 2004 Mr A. A. Horneman-Wren instructed by Queensland Chamber of Commerce and Industry Limited Industrial Organisation of Employers, for the Appellant. Respondent in person. -- 3 of 3 --