AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.170CE application for relief in respect of termination of employment
C.G. Henderson
and
John Holland Pty Ltd
(U2002/636)
COMMISSIONER SPENCER |
BRISBANE, 30 APRIL 2002 |
Alleged unlawful termination - contract of employment for a specified task or a specified period of time - jurisdiction.
DECISION
INTRODUCTION
[1] This Application pursuant to section 170CE of the Workplace Relations Act 1996 (the Act) was lodged by Mr Colin Henderson (the Applicant) in respect of the termination of his employment by John Holland Pty Ltd (the Respondent).
[2] By the Notice of Employer's Appearance1, the Respondent objected to the Commission hearing the matter on jurisdictional grounds, namely that the Applicant was engaged under a contract of employment for a specified task or a contract of employment for a specified period2. In addition, it was argued that the Applicant was not employed under a Federal Award or Agreement. In response Counsel for the Applicant argued that the Applicant had been terminated on a discriminatory basis on a ground under section 170CK3 and that this therefore provided jurisdiction for the Commission if the matter was barred under S170CE4
WAS THE APPLICANT ENGAGED UNDER A CONTRACT FOR A SPECIFIED PERIOD OF TIME OR FOR A SPECIFIED TASK?
[3] 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 period of time or a specified task;"5
[4] 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:
(a) an employee engaged under a contract of employment for a specified period of time;
(b) an employee engaged under a contract of employment for a specified task;"6
Whether the contract entered into between the Applicant and Respondent falls into either of the above categories was argued between the parties in written and oral submissions.
[5] The Applicant was engaged as a result of a written Employment Application7. To decide the terms of the contract, I have considered the documentation, submissions and the evidence of the Applicant, and Mr Gordon Hutchings, Occupational Health and Safety/Industrial Relations Manager, for John Holland Pty Ltd.
WAS THE APPLICANT ENAGED UNDER A CONTRACT FOR A SPECIFIED TASK?
[6] The Employment Application indicates the position applied for was "Labourer Concreter"8 and the Job Location as "Water Treatment Plant Redcliffe".9 This accords with the Project being undertaken on this site by John Holland Pty Ltd. The Applicant has also confirmed on the Application that:
"- he will work overtime as required by the Project .....
- abide by all Project Policies and Regulations including Site Safety Rules .....
- understand the place of engagement is at the site and that the terms of employment will be strictly in accordance with the relevant Site Agreement of Award Conditions"10
[7] Mr Gordon Hutchings in evidence stated:
"1. John Holland was engaged by Redcliffe City Council to undertake work at the Redcliffe water treatment plant project (C227) commencing on or about January 2000 ("the Project"). The Project duration was approximately 12 months.
2. On or about 15 March 2000, Mr Henderson completed an application for employment with John Holland as a labourer/concreter for the Project. A true copy of the said employment application is attached and marked "Employment Application".
3. The hand completed references to "Project: Redcliffe WWTP" on the cover page of the employment application and "Job Location: Water Treatment Plant Redcliffe" on page 1 to 4 of the employment application are references to the Project.
4. Mr Henderson's employment application was approved by the John Holland Project Manager, Mr Kevin Killalea and me on or about 17 March 2000. My initials "GH" are in the "approved" box on the cover page of the employment application.
5. .......
6. Mr Henderson commenced employment with John Holland on 20 March 2000 as a concrete finisher (classification "CW4" under the Award).
7. .......
8. At all relevant times, Mr Henderson was employed by John Holland:
(a) for a specified task, namely to undertake concrete finishing work on the Project; and/or
(b) for a specified period of time, namely the duration of his work as a concrete finisher on the Project.
9. John Holland only employs concrete finishers for a specific project. John Holland does not employ any concrete finishers on staff.
10. On or about 14 December 2000 Mr Henderson's employment was terminated with effect on 21 December 2000. Mr Henderson's employment was terminated because his work as a concrete finisher on the Project was complete.
11. On termination, the John Holland Project Manager, Mr Kevin Killalea, completed and signed the document titled "Employee Labour Termination Advice".....
12. During the term of Mr Henderson's employment with John Holland, Mr Henderson worked only on the Project and was located at the Project. This is confirmed by the Form R18 Rule 7 form titled "Application for relief in respect of termination of employment" filed by Mr Henderson, which states at item 9 "Place of Work .... at the time Redcliffe water treatment".
13. To the best of my knowledge, Mr Henderson has not applied for employment on any other John Holland projects since termination of his employment contract for the Project in December 2000."11
[8] In relation to whether Mr Henderson had been employed on a contract for a specified task, I refer to the authority of Andrew Hewitt v ACTek Custom Engineering Pty Ltd12. Lacy SDP in this case set out:
"[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).....
[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." 13
[9] Applying this reasoning to the present matter on the basis of the materials before me, and the more convincing evidence of Mr Hutchings, I accept that the Applicant's contract of employment was for a specified task of performing concrete finishing work on a specific Project, the Redcliffe Water Treatment Plant Project (the Project).
[10] Lacy SDP further notes
"[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 " 14
[11] On the evidence, submissions and materials in this matter, I consider in line with the abovementioned authorities "the task to which the employment contract relates is distinct and identifiable in its own right"15 and therefore the Applicant's employment is a contract for a specified task.
WAS THE APPLICANT ENGAGED UNDER A CONTRACT FOR A SPECIFIED PERIOD OF TIME - REGULATION 30B(1)(A)?
[12] The case law indicates that a `specified period of time' is a period of time that is characterised by certainty. The Respondent argues that the term of this contract is fixed for the specific period of time for the duration of the Project.16
[13] Therefore construction of the contract as to whether the project had a specific life is in issue. "Each case must be dealt with on the basis of the terms of the particular contract involved to ascertain whether on its true meaning the contract is or is not one for a specified period of time."17 The Applicant contends his contract was not for the life of the project only, but a full-time employment contract.
[14] The Applicant suggests he completed an additional form after the Employment Application that stated his employment was to be full time.18 The Applicant, in evidence, maintains he was under "the impression his contract was full time"19 The evidence of Mr Hutchings points to the second set of forms being those only relating to the collection of taxation number details and that the Applicant's employment only related to the Project.20 This is further supported by the evidence of the Applicant under cross-examination (as set out below) where he confirms he understood that the contract of employment was limited to the Project:
PN286
"So at the end of the project, in fact your employment is terminated and you then reapply for employment on the next project?---Yes. Yes."
[15] The Applicant has demonstrated in his evidence (as set out below) an awareness that the period of his contract related to this Project and the process he had to undertake to apply for further work (even though he may have been uncertain as to exactly when the project was to be finalised):-
PN138
"Before your employment was terminated on 21 December 2000, what was your understanding as to what would happen to you when the Redcliffe project finished?---That I'd be offered other work.
PN139
And did you have any knowledge about other work sites?---Yes, we all had knowledge. Everybody was talking about different jobs around the place and that they had to get their act together and put their applications in and so forth to secure work for after Christmas.
PN140
Now what was the procedure to be followed if you - - - ?---Well, it was a funny procedure, my friend. You've got to ask. You've got to be - it's a family. You've got to be in on the know or whatever the case may be, but the normal procedure is put an application in for the next job."21
[16] It was argued on behalf of the Applicant that he was employed on a full-time or continuous basis.22 In the Applicant's Outline of Submissions23 it was contended that the Applicant's contract of employment was analogous to that of Ms Strecker's in Strecker v Metropolitan Cemetery Board 24 where Ms Strecker was employed for successive periods of time which amounted to a period of continuous employment.
[17] In addition on this argument, I was referred to the decisions of Fisher v Edith Cowan University25. I consider the facts at hand to be distinct from the series of engagements that characterised the employment contract in these decisions.
[18] I consider the specific period or actual timing of the Project in the evidence, documentation and submissions to be vague. Accordingly I do not determine that the contract was for a specified period.
WAS THE TERMINATION BASED ON SECTION 170CK TERMINATION
- DISCRIMINATORY GROUNDS
[19] Counsel for the Applicant argued that if the Commission considers the Application is jurisdictionally barred via S170CE, the Commissioner nevertheless has jurisdiction via S170CK26. Section 170CK(2)(a) of the Act states:
"170CK(2) [Grounds on which employment must not be terminated]
Except as provided by subsection (3) or (4), an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
(a) temporary absence from work because of illness or injury within the meaning of the regulations"27
[20] Counsel on behalf of the Applicant submits:
"According to Mr Henderson's statement, he was injured in the course of his employment as a result of what appears to have been the deliberate actions of others at the construction site. In addition, he was subjected to harsh and objectionable treatment by a foreman, Grant Appleby. Directly as a result of these events, he had various times off work, after which he was informed by Mr Appleby that he was sacked as he had too much time off. Following union representations, he was reinstated but on or about 21 December 2000, his employment was terminated. He contends that the termination of his employment was not as a result of the completion of his contract, or of the completion of the task he was working on, but was unlawful termination in contravention of the Workplace Relations Act 1996 (the Act)."28
[21] Counsel submitted:
PN715
".....Section 170CK(1) makes reference to the convention concerning discrimination in respect of employment and occupation. And then section 170CK(2) sets out a number of grounds on which employment must not be terminated, and one of those is temporary absence from work because of illness or injury within the meaning of the regulations. .....Mr Henderson's case is that his employment was terminated on 21 December 2000 on that basis .....
PN716
In my submission, ..... the inference that can reasonably be drawn from Mr Henderson's evidence, ..... where he says that Mr Appleby sacked him some time earlier in the year 2000 due to the fact that he'd had too much time off work ..... he was reinstated after contacting the union representative and the project manager, Mr Killalea, and he then did another 12 weeks until he was made redundant on 21 December 2000. ..... my submission is that the inference which can reasonably be drawn ..... is that in fact his employment was terminated and his employment was not renewed on a new project site because of the fact that he'd had too much time off work, and so that, in my submission, the basis for his termination. It's a reasonable inference that the basis for his termination is a ground which is made unlawful by section 170CK(2)."29
[22] The evidence of both Mr Hutchings and the Applicant points to a system of separate contracts of engagement related to each finite project. The contract is terminated at the conclusion of each engagement and a new Application is to be submitted for another project and then if required, the employee will be employed on a new contract. Whilst the Applicant presumed he would be employed on the next project, the Dohles Rocks Road Project, it is in contention as to whether he submitted an application form, although he was aware that this was the process required.30
[23] Whilst the issue of determining whether the termination was based on a discriminatory ground is an issue for a court of competent jurisdiction, I note the following only as far as it is relevant to deal with the argument as raised in the current jurisdictional hearing. An examination of whether the Applicant was terminated on discriminatory grounds, must consider whether he was treated differently to other employees, from the same project. The evidence of Mr Hutchings indicates that like the Applicant, not all employees from the Redcliffe Water Treatment Plant Project were employed on the Dohles Rocks Road Project:
PN570
"Well, just dealing with construction workers, are you able to say what proportion went from Redcliffe to Dohles Rocks Road?---Well, I can tell you this. On 21.12 when Colin finished up there was seven people finished up at the same time. One of them went to Dohles Rocks Road, one of them went to Dalrymple Bay and the other finished - the others all finished."31
[24] Whilst Counsel for the Applicant argued that the Commissions jurisdiction is maintained via S170CK even if the applicant is barred via S170CE, I do not support this view. Counsel argued the evidence in this matter, established a link between the Applicant's alleged termination for absence from the workplace (due to illness or injury) and his redundancy on 21 December 2000. In my view, his redundancy related to the circumstances of the Project being completed rather than any victimisation. In any event given the earlier determination with regard to the contract being one for a specified task and the following comments in relation to lack of Federal Award or Agreement coverage, I conclude that the matter remains jurisdictionally barred.
FEDERAL AWARD OR AGREEMENT
[25] The uncontested evidence of Mr Gordon Hutchings confirms that the Applicant would be excluded via s.170CB(1)(c) of the Act as he was not employed under a Federal Award or Agreement (as defined in s.170CD(1)). The Applicant was employed as a concrete finisher (classification "CW4") as recorded in the Civil Construction, Operations And Maintenance General Award - State32 as underpins the relevant State Agreement applicable to this Project being the "Queensland Major Contractors Association Multiple Business Agreement for the Pacific Motorway"33.
EXTENSION OF TIME
[26] During the course of the hearing, it emerged that "the last day worked", had been recorded in error on the Application as 20 December 2001. The parties acknowledged that the correct date should be 21 December 200034. The Applicant's witness statement was amended to reflect this. This would make the Application more than 1 year out of time. However, no Extension of Time objection had been lodged by the employer. It is therefore unnecessary for me to determine this issue. However the Applicant indicated the following reasons for his delay in lodging:
PN379
"My question is: why didn't you commence these proceedings - - -?---Oh, okay, yes. Yes.
PN380
- - - or this claim in the Federal Industrial Relations Commission after or shortly after 21 December 2000 when you were made redundant?---One: I wasn't aware of the protocol of the way things tick or move in Australia; two: I got sick and needed to seek professional help for my sickness at the time."35
CONCLUSION
[27] I consider the Applicant was engaged under a contract of employment for a specified task.
[28] I also note that the amended termination date of 21 December 2000 could have led to the exclusion of this matter, as it would appear difficult to justify a delay of more than one year on the reasoning for the delay advanced in these proceedings.
[29] The Applicant's case, in any event, also would be jurisdictionally barred as he was not employed under a Federal Award or Agreement.
[30] Accordingly the Commission has no jurisdiction to determine the Application and it will be dismissed. I Order accordingly.
BY THE COMMISSION:
COMMISSIONER
Appearances:
Mr S.J. Hamlyn-Harris of Counsel instructed by Mr G. Doring Solicitor of Cranston McEachern for the Applicant, Mr C.G. Henderson.
Mr D. Deller of John Holland Pty Ltd.
Hearing details:
2002.
Brisbane:
April 2.
Printed by authority of the Commonwealth Government Printer
<Price code D>
1 Form R21 Notice of Employer's appearance - termination of employment
2 Form R21A Motion to dismiss for want of jurisdiction; Transcript PN 26, 717
3 Workplace Relations Act 1996
4 Workplace Relations Act 1996 s.170CE
5 Workplace Relations Act 1996 s.70CC(1)
6 Workplace Relations Act 1996 reg. 30B(1)(b)
11 Exhibit 2 - Witness Statement of Gordon Hutchings dated 28 February 2002
13 Hewitt v ACTek Custom Engineering Pty Ltd [PR904665] par 18-20
14 Hewitt v ACTek Custom Engineering Pty Ltd [PR904665] par 22, 23
15 Hewitt v ACTek Custom Engineering Pty Ltd [PR904665] par 24
16 Anderson v Umbakumba Community Council 121 ALR 121 @ 125 - 126; cited by Giudice J, Harrison SDP and Lawson C in Qantas Airways Limited [Print Q1482], 9 June 1988 at 7.
17 J. Grycan v Table Tennis Australia Incorporated [Print R7452] p. 6
20 Transcript PN 273, 442, 508
25 Exhibit 6 [PR960584], Exhibit 7 [PR970098]
27 Workplace Relations Act 1996
28 Exhibit 4 Applicant's Submissions on Jurisdiction pp. 1-2