Coralprint Pty Ltd t/a Revamp Pty Ltd v Coxeter [1998] ICQ 26 (1998) 158 QGIG 473

472 QUEENSLAl"\i-U GOVER~MENT INDUSTRIAL GAZETTE [7 August, 1998 ment I [SSN 0155-9362 , 14 , 1 No. 18 ,,,,,, A•n.c.,u R-r:latior..s ,"ict ; 1,t,r:.::>,J f.rurn dcdsi;..Jn. of induslr.u1 coo1rni,:sicm rf 1998) :5 /\ugust 1998 -- 1 of 2 -- 474 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 August, 1998 "The present respondent successfully sought relief under Chapter 5, Part 2 of the Workplace Relaiions Act 1997. 'Ihe Cornmission h,old that the appellant employer was guilty of deplorable conduct toward, its eniployee, the present n:spondem, and granted the relief sought lf the resr,<:indent had the necessary standing to claim relief under Chapter 5, Part 2 the decis10n should stand. l have not heard submissions on that pc•int, but I have read the written submissi01is. ! would reiterate that the appellant's conduct was deplorable and constituted unfair distnis.sai. The real que,stion for determination on the heating of this appeal whed,er or not the respondent had the necessary standing to make the application. The respondent wmmence<l employment with 1he appellant n1 :vfarch 1997 and that ernployment was terrninated 1.::.n 9 September 1997. The respondent was candid during her period in the v.'itnes.~ hox in answering qu.:stions as to the basis of her .ompioymenL On one occasion ;,he said, 'I w:ts employed on a ca3ual basis and there was no rninimuui hours or maximum hours. It was just on call'. A little later on she said that she was offored full-time empioyn1em but 'I declined it at the time- he~n1.se it wasn't conven1ent'. Section 216(2) ot the Workplace Rdations 1ici 1997 provides that Part 2 thereof applies to casual employees other than !host, exduds"d under a regulation. 1lle relevant regulation ii regulation 34 of the \llorkplace Relations Rq:rnlation 1997. The first pa.n,graph thereof states Iha! Chapter 5, Part 2 of t.'1c Act does not apply to a 'sh01t term casual employee'. Thsc second paragraph thereof provides that Part 2 and also Part 3 of the Act do not apply to certain en1ployee-~5 whn can broadly ·he. dcscribz~d probatlonarit:'s. Then. effective from l June I 997, a fi<trngraph three was inserted which <ilso exdudcd frorn the operatk:m of the At:t e:rnpioyecs \4.'1:10 were caught by the definition therein s;~t out There is a gc-neral reference to casual employees in that co1t!ext So in broad tETIT'.tS regula.tion 34 exdudc.s three categod0.S of ew.pJoyees from th,, operation of Chapter 5 Part 2. Clearly. JJ an enipioyte falls \Vitinn one of fu(}se three c;;tte,~_!{)t'!e.;y then that v1np1oyee excluded. does not matter !he ,,mployee may no! 1vithi11 eiiher c:if the other two caiegones. 1Jnfortunate.l.y. the Commissioner's attention not drawn approprjately tn regufatiou ::-q. {n his re-a.sons he s1n-ipiy sa.id · ·The nature of her working arra.11geroent~ could not place her in the category of a ('3sual employee'. It seem~ that he was ditc-eting his mind t0 regulation 34(3) rather man to regulation 34(i) in saying that As have said, n.::guhrtion 34( l) provides that the i\.ct dc?t.:s not apply to ~- 'short tern1 casttal 6n1ployce' 0 The regulation defmes a short term casual ernpioyee a.s casual en1pioyce wfo.) m>t a 'kmg term casu;1! en1p!oyee'. That take,..: one to th-:~ definition of 'long tem1 casual cn11Jioye~', In paragraph 5 of regulation 34 one find'\ th.is definition o1 such an ~tnpk)yc;;; · A ca.sual employee who -· {aj cngage<l (1) by a paiticular cniployer on a regular and sysk:n1aric ba.sis: and (2) for several pennds ci eniploy.tnd1t during a period nf at least one ye~tr: and (b) apart fn.,n1 the ernployen decision not to (1.ffer the person further cni1.lnyn1ent had a reasonable expe-ct:1tion of furthi•,.r emplo:,-Tne11t hy the c:rnpioye:c', ()n the whole of the evide-nce I arn saibi'ied tfwt flit: re.spond.::-nt was en1pi~)yed (JO. a regular and systematic ha.sis, She- wa,;., also e.rnployed for ,several j..-X--1ind~ of en:.ployrnent during the ,μer.{od .\{arch t.o Sepkrnber I99I f asn further satisfied tl1ar she had a reasonable expectation of furthtr 1;.~ff1pioyrnent prior to the event,; which .led to her ;:.n1ployrne.nt b~ing knninated on 9 September l 997. 'i11e critical question i8 what is the cffo,;;:t of the phrase 1 'during the perlod of at least one year 1 when the d~finition refer~ to several pericxis of e-mploymer.t VVhilst it may Ix, said that ,be fixing of one year as the rdevant period 1s &hitrnry, it never ihe less is clear that the legislature ha~ provided that the casual employee must have been emplo::,ed by the emplcyer for al least 12 mont.li., before the definition of ·(ong term casual empJoye.e' could be satisfied. As I put counsel during the course of argument, if there had been regular and systt-rnatic en1JJloym.ent covering several periods of employrnm! of a 364 day period, me definition would not he satisfied. Thai is the only construction which can he placed on that definition. Because the respondent was nnly employed dming the period from March to September 1997, she cannot satisfy that definition of long temi casual employee. She was thcref.:-,re a short term casual employee: tlicrefore she is an employee to whom Chapter 5 P3rt 2 of the Act does not apply. It follows thar the appeal .should be allowc:d. ,c\ director of th., employer company appe.,red on behalf of the employer at the initial hearing. Alihough he did raise a point with mspect to the casual nature of the applicant's employm,ml ii was a point not !:aken in conformi1y with regulation 34 and, as I have already said, lhto Commi:;sioner's in.ind was 1101 directed to the appropriate provisions. Having regard to !ha! and to all cJrcums!a:nccs of the case 1 am of the view that the appropriate order is to make no ordt;r as to costs. 'The appeal win be ;;)lowed. The orders below set aside and m lieu thereof iliere will he an order that the applicatkm be dismissed. No order as tu l:Osts here> and bdow. Dated this fifth day of Au;:,•usl, ! 998. By the Coutt, !LS.jEEWALD, 1udustrial Registrar. J\1r A,. l-}ornetnan--\\/ren (instructed by Ban;vick.;;; \\'ise'Nou1ds, Solie.ii.or.~) for the appc,JlaoL Mr P. O'Brien (of (YBnen and Associaks) for the r,0 sponde11t 14 1998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETfE 475 -- 2 of 2 --