Chubb Security Australia Pty Ltd v Chee [2001] ICQ 10 (2001) 166 QGIG 388

388 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 April, 2001 INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission Chubb Security Australia Pty Ltd AND Malcolm John Chee (No. C3 of 2001) PRESIDENT HALL 3 April 2001 DECISION In or about July 1998 the respondent was employed by ARM Security as a security guard. When the business of ARM Security was purchased by the appellant, the respondent entered into a new contract of employment with the appellant (on 30 June 2000). Within the meaning of s. 69 the respondent became a “transferred employee”. The respondent’s employment with the appellant was terminated on or about 4 September 2000. The respondent sought a remedy pursuant to part 2 of chapter 3 of the Industrial Relations Act 1999. When the matter was called the appellant took as a preliminary point that part 2 of chapter 3 did not apply to the respondent because the respondent fell within the exclusionary provision which is s. 72(1)(a). The submission of the respondent, which succeeded at first instance, was that as a consequence of ss. 68 and 69 the respondent’s service “was longer than 3 months and he was not an excluded employee within the terms of s. 72(1)”. From that decision the appellant seeks relief in this Court. It is helpful to set out the terms of ss. 68 and 69 (which fall within part 6 of chapter 2) and s. 72(1) (which falls within part 1 of chapter 3). “How part applies 68.(1) This part applies when working out an employee’s rights and entitlements under this chapter or chapter 3 13 by prescribing when the employee’s continuity of service is not broken. (2) An employee is not entitled to claim the benefit of a right or entitlement more than once for the same period of service. Continuity of service – transfer of calling 69.(1) A ‘transferred employee’ is a person who becomes an employee of an employer (the ‘new employer’) because of the transfer of a calling to the new employer from another employer (the ‘former employer’). (2) Even if a person is dismissed by the former employer before the transfer of a calling, the person is taken to be a transferred employee if – (a) the person is employed by the new employer after the transfer; and (b) the employee – (i) was dismissed by the former employer within 1 month immediately before the transfer; and (ii) is re-employed by the new employer within 3 months after the dismissal. (3) The transfer of the calling is taken not to break the transferred employee’s continuity of service. (4) A period of service with the former employer (including service before the commencement of this section) is taken to be a period of service with the new employer. (5) In this section – ‘dismissed’ includes stood-down. . . . Who this chapter does not apply to 72.(1) Part 2 15 does not apply to – (a) an employee during the first 3 months of employment with an employer (the ‘probationary period’), if the dismissal is for a reason other than an invalid reason, unless the employee and employer agree in writing that the employee serve – (i) a shorter probationary period; or (ii) no probationary period; or (b) an employee serving a longer probationary period if – (i) the period decided, by written agreement between the employee and employer, before the employment started is a reasonable period having regard to the nature and circumstances of the employment; and (ii) the dismissal is for a reason other than an invalid reason; or . . .”. On a literal construction of the three sections, the respondent’s submission cannot be sustained. Favourably to the respondent, it may be assumed (a) that it is the effect of ss. 68 and 69 that the termination of his employment by ARM Security and his engagement by the appellant is not to be treated as breaking the continuity of his service for the purpose of working out his rights and entitlements under chapter 2 or chapter 3 and (b) that his service with ARM Security and with the appellant is to be aggregated for the purpose of working out his rights and entitlements under chapter 2 and chapter 3. That assists him not at all in meeting the threshold for access to part 2 of chapter 3 imposed by s. 72(1). The remedies made available by part 2 of chapter 3 are neither denied to an employee with less than 3 months service nor made available to an employee with more than 3 months service. The remedies made available by part 2 of chapter 3 are denied to an employee during the first 3 months of employment with an employer. The respondent was within his first 3 months of employment with the appellant. The statement that, for the purposes of determining the respondent’s rights and entitlements he is to be treated as having a period of continuous service of approximately 26 months, reveals nothing about how much service he had rendered since the date of engagement (and s. 69(3) does not establish a fictional date of engagement) on 30 June 2000. -- 1 of 2 -- 12 April, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 389 In reliance upon s. 14(B)(1) of the Acts Interpretation Act 1954 the respondent seeks to go to the Minister’s second reading speech. The meaning of the legislation being clear I should have thought that s. 14(B)(1) authorised resort to the Minister’s second reading speech only for the purpose of confirming the interpretation. Here, resort to the Minister’s second reading speech is for the purpose of creating an ambiguity. However, there is no authority for the proposition that s. 14(B)(1) codifies the law about when one may go to extrinsic materials in interpreting statute. The observations of Mason J in K & S Lake City Freighters Pty Ltd v Gordon and Goch Ltd (1985) 157 CLR 309 at 315, in the joint judgement of Neaves, Burchett and Lee JJ in Busby v Chief Manager, Human Resources Department, Australian Telecommunications Commission (1988) 20 FCR 463 at 468 and the observations of Burchett J in Short v FW Herchus Pty Ltd 1993) 40 FCR 511 at 517 to 520 support reference to the second reading speech to raise as well as to resolve an ambiguity. Reference to the Minister’s second reading speech, is however, of little assistance to the respondent. The Minister’s observations are unhelpful. The Minister said:– “Specifically, the bill includes – • . . . • The protection of employee entitlements such as annual leave, sick leave, long service leave, family leave and protection of the employee’s continuity of service for dismissal and notice requirements when a business changes hands.”. It is apparent from the use of the expression “notice requirement” that “dismissals” was not being used in a compendious sense to refer to all dismissals at chapter 3. But to the question “to which of the dismissals of chapter 3 does part 6 of chapter 2 apply?”, no answer is available. Reliance is then placed on the report of the Industrial Relations Taskforce of December 1998 entitled “Review of Industrial Relations Legislation in Queensland” (admissible on the same basis as above). At p. 56 of the Report, the following passage appears:– “In relation to transfer of business, the majority of the Taskforce was of the view that continuity of service on transmission of business should be extended to family leave, notice requirements and unfair dismissal. This would prevent the current anomalous situation where an employee would find their entitlements to maternity leave or access to remedies for unlawful dismissal compromised on transfer of business, despite having many years of service.”. (The circumstance of the Taskforce referred expressly to “unfair dismissals” whereas the Honourable Minister did not is perhaps revealing.). The difficulty for the respondent is that if ss. 68 and 69 do apply in determining an employee’s rights under part 2 of chapter 3, on the construction of s. 72(1)(a) which I have adopted, ss. 68 and 69 still have work to do. By s. 72(c) a short term casual employee is excluded from the remedies of part 2 of chapter 3. By s. 72(8) short term casual employee is defined to mean 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; (b) apart from the employer’s decision not to offer the person further employment, had a reasonable expectation of further employment by the employer. There seems to be no reason why the aggregate (and deemed continuous) service with the former employer and the new employer should not be taken into account in determining whether the employee has been engaged “for several periods of employment during a period of at least 1 year.”. The difference between s. 72(1)(a) and s. 72(8) is that s. 72(1)(a) requires one to count forward from a particular date (the date of commencement of employment) whereas s. 72(8), in defining “short term casual employee” requires one to count back from a particular date (the date of termination). I doubt that it is helpful to characterise the Industrial Relations Act 1999 as “beneficial legislation” when one is attempting to construe a provision directed at limiting the beneficence of the Act. In any event, by s. 3 the Act has Principal Objects one of which, “employment security” is more likely to be enhanced by the construction which I have adopted than by the construction contended for by the respondent. I allow the appeal. The matter is remitted to the Queensland Industrial Relations Commission in order that it may be heard and determined according to law. Neither party seeks costs. Dated this third day of April, 2001. D.R. HALL, President. Released: 3 April 2001 Appearances:– Mr A. Herbert instructed by Employer Services Pty Ltd for the Appellant. Mr J. Dwyer of Reidy and Tonkin Solicitors for the Respondent. -- 2 of 2 --