In this matter the applicant, Ms Coy, has lodged an application under section 170CE(1) of the Workplace Relations Act 1996. The respondent lodged an objection to the Commission dealing with the application on the basis that the applicant was excluded from the relevant provisions of the Act by virtue of Regulations 30B(1)(c) and (d). The applicant was represented by Ms Serpell of the Media, Entertainment and Arts Alliance (MEAA) and the respondent by Mr Bakis, the respondent's director.

Ms Coy gave evidence that she knew Mr Bakis and had worked with him as a dancer prior to being engaged by the respondent. She was called by Mr Bakis in March 1998 and told that he had received a contract with the Melbourne Storm. She was asked if she wished to audition. She attended an audition with about 70 other dancers and at the conclusion was told that she would be informed if she was selected or not. She was later telephoned and asked to attend a meeting with other successful applicants.

On 18 March 1998 Ms Coy attended a meeting with about 15 other people. It was her evidence that everyone was given a showbag with documents congratulating them on their selection, game and rehearsal dates and merchandise from Storm. She identified the documents received. The letter, dated 16 March 1998 reads as follows:

"CONGRATULATIONS! You have been selected as a member of the Melbourne Storm Dance Crew for the 1998 season.

The team of 16 dancers/acrobats (10 girls/6 boys) will perform as part of the entertainment package at all of the 12 home games.

The fixture for the 1998 season is enclosed detailing dates and times of games, as you will notice the venue remains the same for the entire season.

Also included is a rehearsal schedule. Should any of these dates clash with other jobs, overseas trips etc. Please let us know in (writing) now! We do not have a swing included as part of the regular team, therefore your availability is essential.

Welcome to what promises to be an exciting first season for the Melbourne Storm Dance Crew."

Those present were asked to read through the documents and to check dates for the game fixtures and rehearsals. They were told to inform Mr Bakis if they were not available for any dates. She understood that she was to be employed for all of the dates for the 12 weeks. There was no discussion of any period of probation. Ms Coy identified another document headed "Availability" that was sent to her some time later.

Ms Coy attended the first rehearsal. It is not necessary for the purpose of these proceedings to refer to what occurred at that rehearsal. Later on the same day she received a phone call from Mr Bakis who told her that he was not happy with the rehearsal and felt that they had a personality clash. He then told her not to come to the next rehearsal.

Ms Coy was asked in cross-examination what would have happened if she had been offered another job that would have taken her away for three or four weeks. She stated that she would have put that to Mr Bakis to see what he had to say. She understood that she would not be paid if she was unable to attend a performance because she was ill. She would have expected, however, to return to her position on her recovery.

Mr Bakis' statements about the basis upon which Ms Coy came to be in the respondent's employment were consistent with her evidence except that he stated that the document headed "Availability" was handed out to dancers at the meeting on 18 March 1998. He stated that the dancers were paid weekly or fortnightly depending on when he was paid by Storm. They were paid a performance rate of $110 and a rehearsal rate of $15 per hour. The respondent was not party to a federal award but applied the Cultural and Recreational Services Industry Sector Minimum Wage Order - Victoria - 1987 [Print P6851].

He further stated that everyone knew it was a casual position. One of the dancers took a holiday and came back. All of the boys were let go because the Club did not want boys any more. If Ms Coy had been booked for another job during the period she was working for him she could have done that job so long as she informed him and gave him notice.

Mr Bakis submitted that everybody in his employ was on probation. Every performer is always on a probationary period until they have proven themselves to be worthwhile employing for further jobs. They should all know they are under a probationary period. He had no evidence to show that Ms Coy was told that she was on probation or that any period of probation was specified.

He further submitted that everyone knew the work was casual and he would have been happy to let Ms Coy go for another position and if their relationship was on good terms to come back and still have her position at Storm. He described Ms Coy as a Performer Grade 1.

Ms Serpell submitted that the applicant was not engaged as a casual employee but was on a contract for a specified period. Ms Coy was employed to perform all of the 12 home games and the offer was dependent on her being available to attend those performances and a rehearsal schedule given to her. She referred the Commission to the decision of Moore J in Reed v Blue Line Cruises (IRCA Dec. 571/96, 26 November 1996) where his Honour states that casual employment plainly involves a notion of informality or flexibility in the employment following the engagement. He went on to quote from the Shorter Oxford and Macquarie Dictionaries and to then conclude:

"A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual."

"In my opinion, a casual employee for the purposes of Regulation 30B is an employee who is, from time to time offered employment for a limited period on the basis that the offer of employment might be accepted or rejected but in circumstances where it could be expected that further employment of the same type would or might be offered and accepted but there was no certainty about the period over which it would continue to be offered."

This decision was followed by Marshall J in Burcombe v Oldham (IRCA, Dec. 587/96, 3 December 1996).

Ms Serpell was not required to address the Commission on the question of probation. It was put to her that if the Commission held that the applicant was employed for a specified period of time then the exclusion in Regulation 30B(1)(a) applied. In response Ms Serpell referred to the decision of Northrop J in Cooper v Darwin Rugby League Inc (1994) 57 IR 238 and, in particular, to the following passage at page 241:

"Of more importance generally is the fact that, even if the contract of employment was such a contract, (ie a contract for a specified period of time) the respondent, possibly, was not entitled to the immunity conferred by s 170CC of the Act. One thing is clear. The employment of the applicant was terminated by the unilateral act of the respondent. The employment was not terminated by effluxion of the period of time specified in the contract of employment. In these circumstances, it is only fair that the issue of whether the termination was lawful or not depends upon all the facts leading up to the unilateral termination of employment by the respondent. The Court has not considered those facts. There is much to be said for the view that the exclusion of the operation of the provisions of the Act specified by regulation made under s 170CC arises only where the term specified by the contract of employment has ended by effluxion of time."

The relevant regulations in this matter are as follows:

"30B. Certain 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;

(c) an employee serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period, as the case may be, is determined in advance and, either:

(i) the period, or the maximum duration, is 3 months or less; or

(B)is reasonable, having regard to the nature and circumstances of the employment;

(d) a casual employee engaged for a short period, within the meaning of the subregulation (3)".

In this matter I am satisfied that regulation 30B(1)(c) has nor bearing as there is no evidence that it was ever put to Ms Coy that a period of probation was to apply and nothing to suggest that any such period was specified.

Mr Bakis claims that the employment was casual because everyone knew it was and because if people had other offers of work or were unavailable they could let him know. They could then come back to the job if he agreed. None of this is, however, either explicit or implicit in the letter of offer. While Mr Bakis referred to the Cultural and Recreational Services Industry Sector Minimum Wage Order - Victoria - 1987 [Print P6851] as applicable to the applicant's employment, it is not clear from his evidence that she was paid as "Performer, Grade 1" on "casual engagement" within the terms of that wage order. Even if she were it is clear from the case of Reed v Blue Line Cruises and other cases which have followed it that the term "engaged on a casual basis for a short period of time" is not defined by employment as a "casual" within the provisions of an award but is a question of fact to be determined by all of the features which characterise the engagement.

From the material and evidence before me I am satisfied that the contract entered into by the applicant and the respondent was not engagement on a casual basis but a contract to perform "at all of the 12 home games" as specified in the "game day fixture" and to attend the rehearsals as specified in the "rehearsal schedule". The contract did not specify any method of termination either by the giving of notice or for misconduct by the employee for any other cause. I am satisfied that the applicant was engaged under a contract of employment for a specified period of time as defined by Cooper v Darwin Rugby League Club Inc and Anderson v Umbakumba Community Council (1994) 126 ALR 121.

Ms Serpell submitted that because the contract was unilaterally terminated by the employer and not by the effluxion of time then the exclusion contained in Regulation 30B(1)(a) did not operate. She relied on the comments of Northrop J in Cooper's case in support of this view.

I have researched the decisions of the Court and this Commission concerning Regulation 30B(1)(a) to find support for the view expressed by Northrop J. Almost without exception the cases fall into one of two categories. Either they are cases where the contract was found to be not one for a specified period of time, or they are cases where the claim has been brought by the applicant after the specified period of time has expired. The only support for Northrop J's view I could find was a comment of Boulton JR in Chinnappan v Queensland University of Technology (unreported, CLS 1995 IRCA 531) where he states:

"I drew the attention of the parties during submissions to the remarks of Northrop J in Cooper v Darwin Rugby League Inc (1994) 57 IR 278, and I do so again. If there were a term specified by the contract of employment, it certainly did not end by effluxion of time. In any event, there was not that degree of specificity in the applicant's engagement by the University as I consider contemplated by the Regulation."

In both these cases the comments are obiter dicta as the matters were determined on the basis that the contracts involved were not for a specified period of time within the meaning of the Act and regulations.

With respect to his Honour, the meaning of the regulation appears on the face of it to be clear. It refers to "an employee engaged under a contract of employment for a specified time". The words are not qualified by the addition of the requirement that the specified time has elapsed. If this was the intention of the legislature then words to that effect could have been added. In any event it would not be necessary to create an exclusion for employees engaged for a specified period of time where the time specified had elapsed as in such cases the contract of employment would be terminated by the effluxion of time. The employee would, therefore, be excluded from bringing a claim because the termination was not at the initiative of the employer.

While the exclusion may create unfairness to those employees engaged on a contract for a specified period of time where the contract is terminated during its life by the unilateral act of the employer, the same could also be said of the exclusions in relation to casual or probationary employees.

I am satisfied that Regulation 30B(1)(a) applies to the applicant and she is, therefore, excluded from bringing this claim. That is not to say that she may not have a claim for breach of contract against the respondent which she is entitled to pursue in the appropriate forum.

I note that there are three other applications (U Nos. 31950 of 1998; 31937 of 1998; and 31951 of 1998) which from the files appear to have been brought by employees under similar conditions and dismissed in a similar fashion. As they are all represented by the MEAA, the union is given 14 days to notify the Commission as currently constituted, how they wish to have those matters dealt with.

C. Serpell of the Media, Entertainment and Arts Alliance for P. Coy.

Termination of employment - unfair dismissal - jurisdiction - no evidence that probationary period specified in advance or would apply - satisfied applicant not probationary employee - not explicit or implicit in letter of offer/contract that employment on a casual basis - satisfied engagement not on causal basis - whether engaged for specified time - satisfied engagement for specified period of time (Cooper v Darwin Rugnby League Club Inc (1994) 57 IR 238; Anderson v Umbakumba Community Council (1994) 126 ALR 121) - Regulation 30B(1)(a) exclusion of "an employee engaged under a contract of employment for a specified period time" not qualified by additional requirement that specified period must have elapsed - satisfied applicant excluded by Regulations - matter dismissed.

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