AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.170CE application for relief in respect of termination of employment
Andrew Hewitt
and
ACTek Custom Engineering Pty Ltd
(U2001/625)
SENIOR DEPUTY PRESIDENT LACY |
MELBOURNE, 25 MAY 2001 |
Alleged unlawful termination - whether contract of employment for a specified task - jurisdiction
DECISION
INTRODUCTION
[1] This application pursuant to s 170CE of the Workplace Relations Act 1996 (the Act) was lodged by Mr Andrew Hewitt (the applicant) in respect of the termination of his employment by ACTek Custom Engineering Pty Ltd (the respondent). By a Notice of Employer's Appearance, the respondent objected to time being extended for the lodging of the application and also to the Commission hearing the matter on jurisdictional grounds, namely that the applicant was engaged under a contract for a specified task. In addition, during the hearing before me, counsel for the respondent raised an argument that the applicant had abandoned his employment.
[2] The issue of abandonment of employment was reserved for determination in the substantive hearing. The respondent abandoned the extension of time issue when it became clear that if there was a termination of employment at the initiative of the employer, which the respondent denies, the application was lodged within the time prescribed by s 170CE(7A) of the Act. This decision deals with the remaining jurisdictional objection raised by the respondent in its Notice of Appearance, namely that the applicant was engaged under a contract for a specified task.
BACKGROUND
[3] The respondent is an electronic and communications engineering organisation which specialises in the development of integrated solutions for use in point of sale and industrial process control markets.
[4] The respondent submits that during 1999, it contacted Mr Joe Kubiac, a recruitment consultant, with a view to Mr Kubiac recruiting a programmer on behalf of the respondent. In an undated letter to Mr Kubiac from Mr Neil Wright, a director and Chief Executive Officer of the respondent,1 Mr Wright stated (amongst other things) that:
"... we are looking at starting a software development project and are seeking an appropriate programmer for the job.
Can you help?
The basic specification is as follows:
The Project To develop a PC based point of sale software back-end for hospitality and general retail applications
...
Duration Estimated 6 to 12 months dependant upon the candidates' [sic] performance and the quality of end product. It [sic] the candidate is any good it could become longer term. Initially though it is just a project job ... "
[5] During the course of proceedings before me, counsel for the applicant objected to the Commission taking the abovementioned correspondence into account. This objection primarily stemmed from the fact that the respondent had not provided the Commission with evidence that Mr Kubiac had:
· received the correspondence in question; and, in the event that he had received it
· complied with the specifications as outlined in the correspondence.
[6] I have considered the applicant's objection and have attached the appropriate weight to this correspondence as evidence, taking into account the deficiencies outlined above.
[7] The respondent submits that following the correspondence between Mr Wright and Mr Kubiac, the applicant was referred to the respondent by Mr Kubiac as a candidate for the position in question. The applicant was subsequently interviewed for the position and was then engaged by the respondent in late August 1999 as a software development engineer.
[8] The applicant's employment was terminated in January 2001.
WAS THE APPLICANT ENGAGED UNDER A CONTRACT FOR A SPECIFIED TASK ?
[9] Section 170CC(1) of the Act relevantly provides as follows:
"The regulations may exclude from the operation of specified provisions of this Division specified classes of employees included in any of the following classes:
(a) employees engaged under a contract of employment for ... a specified task".
[10] Regulation 30B(1)(b) of the Workplace Relations Regulations 1996 (the Regulations) provides:
"30B Employees excluded from requirements for termination of employment
(1) For subsection 170CC(1) of the Act, the following kinds of employees are excluded from the operation of Subdivisions B, C, D, E and F of Division 3 of Part VIA of the Act:
...
(b) an employee engaged under a contract of employment for a specified task".
[11] Whether the contract entered into between the applicant and respondent falls into the excluded category was argued in depth in the oral submissions of the parties. The fact that the applicant was engaged pursuant to an oral contract of employment makes the job of deciphering the terms of the contract and whether the contract was for a specified task a difficult one. In this regard, I have been assisted by evidence such as that given by Mr Wright in the proceedings before me, the "Position Description" document which was drafted by the applicant2 and the abovementioned correspondence between Mr Wright and Mr Kubiac.
[12] Mr Wright gave evidence that the respondent was traditionally an electronic engineering company which had very little involvement with software programming. After having some bad experiences with some software programs written by outside contractors, Mr Horst Schmidt, Chief Engineer of the respondent, and Mr Wright made a decision for the respondent to "put a toe in the water"3 in the area of software development. The respondent was given the opportunity, through a relationship with the Victorian Automobile Chamber of Commerce and Sharp Electronics, to develop a piece of software for cash registers which is to complement the hardware that the respondent manufactures. This opportunity was taken by the respondent and, due to a shortage of staff competent in the area of software development, the respondent went about recruiting a suitable person to take carriage of the software development project.
[13] The manner in which the respondent submits that it went about recruiting a suitable person for the project is outlined above. Mr Wright gave evidence that after Mr Kubiac received his correspondence, Mr Kubiac recommended the applicant for the job in question. In his testimony, Mr Wright said that subsequent to Mr Kubiac recommending the applicant, the applicant was interviewed for the position in question by Mr Schmidt and himself. During examination-in-chief, Mr Wright recalled the relevant part of the interview as follows:
"... we explained to Mr Hewitt that we were sort of red raw in the software development game and we were ... sort of going to feel our way and basically offered him a position ... to do the software project and said ... depending on how the project evolves and what the end result is we may or may not move fully into building a proper software development division as an adjunct - or as a separate division from our electronic hardware design. And if that is the case, if everything is fine and works out, obviously we would consider him as a possible candidate for the full-time job. That was the whole premise under which he was employed.
So Mr Hewitt understood at that time it was for a specific project that you wanted him employed - - -?---Very much so, because we were quite specific, we weren't going ... to launch out and build a whole division based on the fact that we had very, very little understanding of the nature of software development
...
Did Mr Hewitt appear to understand and agree with the idea that it was a specific project and for a - - - ? --- That was my understanding, and that was the whole understanding under which he was employed."4
[14] Subsequent to the interview, the applicant was engaged by the respondent.
[15] In addition to Mr Wright's evidence as to the issues discussed during the course of the interview with the applicant, he gave evidence that the applicant was provided with a project brief at the commencement of his employment which outlined what the project entailed and that the applicant was, throughout the course of the project, continually provided with further instructions from the respondent as to what was expected of him. In relation to the applicant being provided with further instructions from the respondent throughout the course of the project, the following exchange took place during the process of re-examination:
"Mr Wright, even though there were continually adjustments, more information provided to Mr Hewitt during the period of his employment did the project he was employed for ever change? The project was always the same project?---Yeah. It was always the same project..."5
[16] Mr Wright went on to describe the nature of the project in some detail in the following terms:
"Basically, the software - the software project Mr Hewitt was engaged on had one core function, that was to run on a personal computer, send in information down to one or more cash registers by - information about prices, products, that sort of thing. When people operate the cash register it was then to take that information from the cash register back to the software on the PC and allow it to be displayed in a form that customers could know what they had sold, how much they had sold, what money that had in the till and things like that. - - -
...
And then once that sale has been completed a scan function or whatever, the sale is completed they hit a button that tells how they have paid for it, by cash, cheque, EFTPOS, credit card. That package of information is then required to be taken back to the computer and where it ends up in a piece of software and the customer can look at that and say: okay, today between 9 o'clock and 11 o'clock we sold X number of those, Y number of those. For the whole day we took so much money, so many cheques, whatever. Just - and that is the core information that they use to run their businesses ..."6
[17] It is important to note that the evidence given by Mr Wright during the proceedings before me was uncontradicted by any evidence from the applicant. The applicant was present but did not give evidence at the hearing. Therefore, Mr Wright's account of the nature of the contract under which the applicant was employed was not challenged or disputed by evidence given by or on behalf of the applicant.
[18] The issue of reg 30B(1)(b) of the Regulations and when it applies and does not apply has been considered in varying degrees of depth by this Commission, the Federal Court of Australia and the Industrial Relations Court of Australia.
[19] In Drury v BHP Refractories Pty Ltd,7 the Industrial Relations Court of Australia underlined the fact that, to fall within the ambit of reg 30B(1)(b), an employee's "contract of employment must be for a specified task; it must be a contract under which the employee is to carry out a specified task."8 The terms of reg 30B(1)(b) in 1995 were not materially different to the present terms of reg 30B(1)(b). In the present matter, as a consequence of Mr Wright's evidence being both convincing and uncontradicted, I accept that the applicant's contract of employment was for the specified task of developing a piece of software for cash registers on behalf of the respondent.
[20] In Drury, the Court suggested that an employer's task or project is irrelevant when it comes to deciding whether reg 30B(1)(b) applies.9 I concur with this proposition. If an employee is engaged to work, for example, on a large scale urban road development such as the Melbourne CityLink project, that has no relevance in determining whether that employee's contract of employment is for a specified task. However, if, for example, an employee was to be engaged under a contract which specified that their sole task was to develop the tolling system in relation to the road development project, this would be a matter of particular relevance in an assessment of whether reg 30B(1)(b) applies in the event of termination of their employment.
[21] In the present matter, the respondent's project was the development of a piece of software for cash registers. As outlined above, upon embarking on this project, the respondent did not have the human resources with the necessary skill at its disposal to enable it to complete the project. Hence, the applicant was engaged to oversee the project on behalf of the respondent in the capacity of an employee of the respondent. In this sense, the project of the employer and the task of the employee were closely related, if not one and the same.
[22] The phrase "a specified task", as it relates to reg 30B(1)(b), has been defined narrowly in the relevant authorities. In Qantas Airways Limited v Fetz,10 the Full Bench of this Commission stated that the phrase "a specified task" would "normally apply to an identifiable project or job."11 The Full Bench cited three dictionary definitions which define "task" as being, "[1] a piece of work imposed on or undertaken by a person ... [2] A definite piece of work assigned or falling to a person; a duty ... [3] any piece of work."12
[23] Another definition which may provide assistance in understanding the meaning of the phrase "a specified task" can be found in The CCH Macquarie Dictionary of Employment and Industrial Relations.13 In it, the word "task", relevantly, is defined as being, "an element or group of elements of work by which a specific result is achieved."14
[24] I agree that the phrase "a specified task" should be interpreted narrowly so as to cover only situations where an employee has been engaged under a contract to perform a project or job which is distinct or identifiable in its own right. The task to which the original employment contract relates should be self-contained and not leave open the possibility of the employee performing any work outside the realm of the specific task for which the employee is being employed. That is not to say that an employee engaged under a contract for a specified task could not agree, during the performance of the contract, to undertake some other work for the employer that was peripheral to the original contract. In those circumstances, a question might arise as to whether there has been a variation of the terms of the original contract.
[25] In my opinion, the applicant's contract of employment was for "a specified task" within the meaning of that phrase as outlined above. The task was distinct and the evidence presented during the hearing before me indicates that the applicant's oral contract of employment was specific in its intent to employ the applicant for the purpose of taking carriage of an identifiable task.
[26] During the proceeding before me, counsel for the applicant also raised the issue that the applicant's contract was extended beyond the time originally estimated by the respondent. The project was originally estimated as having a 6 to 12 month lifespan. However, the applicant was engaged for a period of approximately 16 months on the project.
[27] The fact that the applicant's contract of employment was extended does not mean that it is not for a specified task. In D'Ortenzio v Telstra,15 von Doussa J held that a contract can be extended from time-to-time and still fall within the ambit of reg 30B(1)(b).16 The crucial factor in such circumstances is that the extension must pertain to the same specified task as the initial contract. In the present matter, the contract was extended and this extension pertained to the same task.
[28] In addition, counsel for the applicant raised the issue that the respondent continually updated and adjusted the role of the applicant throughout the course of the project. In D'Ortenzio, it was held that even if there is a change in the specific duties performed by the employee during the course of the employment contract, reg 30B(1)(b) will still apply if those duties contribute to the same specified task for which the employee was engaged.17
[29] From the evidence presented before me during the course of the hearing, it is clear that, while the applicant agreed to undertake some peripheral duties at times during the performance of the original contract, those duties did not constitute a variation or conversion of the contract. Those duties were "part and parcel"18 of the task of developing the piece of software which the applicant was employed to develop. In any event, if the peripheral duties did fall outside the parameters of the task that the applicant was engaged to do, the duties were neither extensive nor indicative of any intention on the part of the parties to vary or convert the contract from a contract for a specific task to one of a different type.
CONCLUSION
[30] As the applicant was engaged under a contract of employment for a specified task, the Commission has no jurisdiction to deal with the application and it will be struck out. I will issue an order to that effect.
[31]
BY THE COMMISSION:
Appearances:
Mr A McDonald for the applicant.
Ms K Lowe for the respondent.
Hearing Details:
2001.
Melbourne:
May 4.
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13 Yerbury, D and Karlsson, M, The CCH Macquarie Dictionary of Employment and Industrial Relations, CCH Australia, Sydney, 1992.