Farrar v Nationwide Oil Pty Ltd [2001] QIRC 69 (2001) 167 QGIG 103

1 June, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 103 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s.74 – application for reinstatement Peter Farrar AND Nationwide Oil Pty Ltd (Case No. B1933 of 2000) COMMISSIONER ASBURY 18 May 2001 Termination of employment – Preliminary jurisdictional point – Claim that applicant is a short-term casual employee –Certified agreement and award provision defining casual employee as one who works less than 38 hours per week – Effect of certified agreement and award provision on exclusion of short-term casual employees from unfair dismissal provisions – Certified agreement and award provision is not a determinative factor in determining whether applicant is a short-term casual employee for purposes of exclusion – Reference to case law on short-term casual employees – Applicant ceased to be casual employee for purposes of award and certified agreement when 38 hours were worked in a week – Applicant is a short-term casual employee for the purposes of exclusion from unfair dismissal provisions – Application dismissed. DECISION Background Mr Peter Farrar (the applicant) has applied for reinstatement to the position of truck driver with Nationwide Oil Pty Ltd (the respondent). The respondent has raised a preliminary argument that the applicant was not dismissed, or alternatively, that the applicant is an excluded employee within the meaning of s. 72(1)(c) of the Industrial Relations Act 1999 (the Act), and submits that the Commission has no jurisdiction to deal with the application. This decision deals with the jurisdictional points. It was agreed between the parties that no evidence would be called, but that reliance would be placed on witness statements filed in connection with the application, to the extent that the contents of those statements was not contested. There is common ground between the parties in relation to a number of facts. The applicant was employed on or about 2 May 2000, as a truck driver, and was informed at the commencement of his employment that he was engaged on a casual basis. The applicant completed his last shift on 28 November 2000. The working hours of the applicant varied during the course of his employment. On a number of occasions the applicant worked in excess of 38 hours in a week, and on other occasions he worked less than 38 hours in a week. The Case for the Respondent The respondent’s case is essentially, that at all times the applicant was engaged as a casual employee. The applicant was paid a casual loading of 19% throughout his employment and did not receive payment for annual leave, sick leave or public holidays not worked. The applicant was part of a pool of casual drivers who were utilised by the respondent to fill vacancies while “permanent” employees were on leave. The applicant had worked in excess of 38 ordinary hours in weeks when he had replaced a “permanent” employee on leave. The applicant was paid at overtime rates for hours worked in excess of 38, notwithstanding the fact that his casual rate included a component for hours in excess of 38. The applicant’s casual rate included a component for hours worked in excess of 38, by virtue of the fact that it was calculated by reference to the rate for weekly employees, which was loaded to compensate such employees for up to 48 ordinary hours per week. The loaded hourly rate is set by the Nationwide Oil Pty Ltd – Vehicle Operators’ – Certified Agreement (No CA299 of 2000), which operates from 1 March 2000 and remains in force, and was binding on the applicant and the respondent during the period between 2 May and 28 November 2000. The respondent says that following a restructuring of its operations, there was a need to reduce hours at the Narangba depot. In accordance with policy, hours of work for casual employees were reduced first. Two casual employees at the Narangba depot (including the applicant) were advised in October 2000 that their hours of work would be decreased. Subsequently, the two casual employees (including the applicant) were told in late November, that there would be no work available for them in the immediate future. It is contended for the respondent that the applicant was not dismissed, and that failure to roster a casual employee for a period of time, does not of itself constitute a dismissal. In the alternative, the respondent contends that the applicant is a short-term casual employee as defined in s. 72(7) of the Act and is therefore excluded from the provisions of Part 2, Chapter 3 of the Act. The Case for the Applicant The contention for the applicant is that he was not a casual employee in late November 2000, when he was advised by the respondent that there would be no work available for him in the immediate future. The submission that the applicant was not a casual employee, is based on clause 8.2 of the Nationwide Oil Pty Ltd – Vehicle Operators’ – Certified Agreement (the Certified Agreement), which provides as follows:– -- 1 of 3 -- 104 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1 June, 2001 “8.2 Casual Employees (a) A Casual Employee shall mean an Employee who works less than 38 hours per week; and (b) Casual Employees are not entitled to annual leave or sick leave but are entitled to long service leave calculated in accordance with Part 3 of the Industrial Relations Act (Qld) 1999 with the exception of clause 13.1(a) of this Agreement.”. Clause 13.1(a) of the Certified Agreement provides for pro rata long service leave to be taken in advance, and is not relevant for the purposes of this application. It should also be noted that clause 4.1 of the Certified Agreement provides that it is to be read and interpreted wholly in conjunction with the Transport, Distribution and Courier Industry Award – Southern Division (the Award), and where there is any inconsistency between the Award and the Certified Agreement, the latter will take precedence to the extent of the inconsistency. Clause 3.1(1) of the Award contains a definition of casual employees which is in essentially identical terms to that contained in clause 8.2 of the Certified Agreement. It is submitted for the applicant, that in accordance with the definition of casual employee contained in the Certified Agreement, the applicant was engaged as a “permanent” employee given that his average hours worked over a 29 week period were 44 hours per week. It is further submitted that support for the “strictly worded” definition of a casual employee, is found in clause 4.5(5) of the Award, which provides that:– “… with regard to the replacement of permanent employees on leave, casual employees may be engaged to relieve on the basis of 38 hours per week over the normal spread of hours of the permanent employee relieved, with a maximum of four weeks in any one instance: Provided that in circumstances where relief periods of 4 weeks are continuous, the employer shall notify the Branch Secretary of the union prior to the commencement of the second relief period.”. Clause 4.5 of the Award does not provide for any specific maximum hours for casual employees, and it is submitted for the applicant that this clause does not assist in the interpretation of the Agreement. In Department of Employment Training and Industrial Relations v Enright Bros Pty Ltd (2001) 167 QGIG 4, I have noted that there is a typographical error in clause 4.5(4) of the Transport, Distribution and Courier Industry Award – Southern Division and held that the clause should be read as providing that ordinary hours of work for casual employees are in accordance with clause 4.1 (Hours of Work) of the Award. Conclusions The submissions for the respondent and the applicant in this matter, focused on the correct interpretation of clause 8.2 of the Certified Agreement. For the respondent, it was contended that the clause should be read so that casual employees are defined as employees who work less than 38 ordinary hours per week, and that the working of overtime does not preclude an employee from being employed on a casual basis. It was also conceded for the respondent that a breach of the Award may have occurred when the applicant worked in excess of 38 ordinary hours in any week, without notification to the Branch Secretary of the relevant union. However, it was contended that the breach did not operate to effect the transfer of the applicant from casual to “permanent” employment. The case for the applicant depends on an interpretation of clause 8.2 of the Certified Agreement, to the effect that on the first occasion when the applicant worked in excess of 38 hours in a week, the applicant ceased to be a casual employee. Accordingly, on the applicant’s submissions, the exclusion in s. 71(1)(c) of the Act does not apply to the applicant. I do not accept the submission for the respondent that failure to roster a casual employee for a period of time does not of itself constitute a dismissal. In cases where a casual employee is not a short-term casual for the purposes of section 72(1)(c) of the Act, such a failure may very well constitute a dismissal. I do not accept the submission for the respondent that clause 8.2 of the Certified Agreement (or clause 3.1(1) of the Award which is in almost identical terms to those of clause 8.2 of the Certified Agreement) should be interpreted to mean that a casual employee is one who works for less than 38 ordinary hours in a week. Such an interpretation would be entirely inconsistent with the history of such clauses in Queensland awards, and begs the question of why industrial parties, including the Queensland Chamber of Commerce and Industry, Industrial Organisation of Employers have expended considerable effort in removing such clauses from a number of awards. The Certified Agreement and the Award, when read in their entirety, clearly have the effect that a casual employee who works 38 hours in any week, is not a casual employee as defined. Clause 4.5(5) of the Award provides an exception, and allows a casual employee to work 38 hours a week for a maximum period of 4 weeks in any one instance, where the casual employee is replacing a permanent employee who is on leave. Where relief periods of 4 weeks are continuous, the employer must notify the Branch Secretary of the relevant union, prior to the commencement of the second relief period. Clause 4.5(5) of the Award was in effect, by virtue of the provisions of clause 4.1 of the Certified Agreement. It may be the case that the applicant has ceased to be a casual employee under the terms of the Certified Agreement, and can claim award entitlements which have not been paid, as a result of the employer’s assumption that the applicant was at all times a casual employee. It may also be the case that the respondent has breached the Award by not complying with the notification requirements in clause 4.5(5). However, these are not matters that fall for determination in this case. In my view, the submissions for the respondent and the applicant, which focused on the issue of whether or not the applicant was a casual employee for the purposes of the Certified Agreement and/or the Award, miss the point. The point that I am required to determine in this case is whether the applicant ceased to be a casual employee for the purposes of s. 72(1)(c) of the Industrial Relations Act 1999, by virtue of the operation of clause 8 of the Certified Agreement, on the basis of having worked in excess of 38 hours, in any week, during the period of his employment. If the applicant remained a casual employee for the purposes of s. 72(1)(c) of the Act, notwithstanding the fact that he did work in excess of 38 hours in any week during the period of his employment, he is a short-term casual employee by virtue of the definition in s. 72(7) of the Act, on the basis that the period (or periods) of his employment were less than one year. In Julia Ross Personnel v Rebecca Wain (2001) 166 QGIG 350 at 350-351, Hall P held that:– “… it does not follow that because an employee is a casual employee for the purpose of an award that the employee is also a casual employee for the purposes of s.72(1)(c). The circumstances that the relevant Award defines an employee to be a casual employee is certainly a matter of fact to be adverted to in determining whether the employee is a casual employee for the purposes of s.72(1)(c).”. The fact that the applicant may have ceased to be a casual employee for the purposes of the Certified Agreement or the Award binding on the employer, is one of the factors to be considered in determining whether he is an excluded employee for the purposes of s. 72(1)(c) of the Act. It is not, however, the -- 2 of 3 -- 1 June, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 105 determinative factor. In Bluesuits Pty Limited t/as Toongabbie Hotel (1265/99 M Print S0282), the Australian Industrial Relations Commission looked at the overall facts relating to an applicant’s employment, including method of payment, entitlement to various forms of leave, rosters and hours of work, to establish whether or not he was a casual employee. It is clear from this decision that the Australian Industrial Relations Commission did not see the fact that “the incidents of the applicant’s employment were consistent with award provisions relating to casual employees” as being determinative, but rather as one of the factors to be considered. In Ross Atkin v Hy Mix Industries (1998) 158 QGIG 184, Bechly C considered the effect of a provision under the Engineering Award – State which was in almost identical terms to clause 8 of the Certified Agreement in this case. Bechly C considered that the applicant in Atkin v Hy Mix was not a casual on the basis that he had worked regular fixed ordinary hours of 38 per week, and overtime of 2.5 hours on each day. However, that case can be distinguished, as the applicant had been engaged as a casual employee to facilitate a probationary period of employment. The respondent had extended the probationary period of employment without advising the applicant, who had a reasonable belief that he was no longer on probation. In the case before me, the applicant was specifically engaged as a casual employee. There has been no issue raised by the applicant that he was not so engaged. During the period of his employment with the respondent, the applicant was paid and treated as a casual employee. The applicant’s hours of work fluctuated depending on work requirements. In some weeks the applicant worked for less than 38 hours and in some weeks his working hours exceeded 38. Hours worked by the applicant in excess of 38 per week, were treated differently than such hours worked by weekly employees, in that they were paid for at overtime rates. After weighing up all of the incidents of the applicants employment, I am reasonably satisfied that at all times, the applicant was a casual employee. The only basis upon which I could find that the applicant was not a casual employee, is that he did not meet the definition of casual employment prescribed in clause 8 of the Certified Agreement which was binding on the employer. While this may entitle the applicant to Award entitlements for weekly employees, and expose the respondent to proceedings in relation to breach of the Certified Agreement, it is not on balance sufficient, to justify a finding that the applicant was not a casual employee for the purposes of s. 72(1)(c) of the Act. If I was to find that the applicant was not a casual employee for the purposes of s. 72(1)(c) of the Act, I would effectively be making the Certified Agreement provision the determinative factor. This is inconsistent with the approach outlined by the President in Julia Ross Personnel v Rebecca Wain. The applicant was a casual employee who was engaged by the respondent on a regular and systematic basis, but was not engaged for several periods of employment during a period of at least one year. Accordingly, the applicant is excluded from making an unfair dismissal application by s. 72(1)(c) of the Act. The application is dismissed. I order accordingly. I.C. ASBURY, Commissioner. Released: 18 May 2001 Appearances:– Mr J.C. Dwyer of Reidy and Tonkin for the applicant. Ms K. Marshall and Mr M. Smith of the Queensland Chamber of Commerce and Industry Limited Industrial Organisation of Employers for the respondent. -- 3 of 3 --