Phillip Martin Andersen and Umbakumba Community Council [1994] IRCA 55

employment of the Employee, a new Agreement shall be entered into. ... SCHEDULE 1 ... CLAUSE 3. THE PERIOD: Employment hereunder shall commence on 5th April 1993 and shall cease at the close of business on 4th April 1995" By Clause 3 and Schedule 1 the period of employment commenced on 5 April 1993 and was to cease at the close of business on 4 April 1995. This, the respondent contends, makes the contract one for a specified period of time. That the contract provides for a period of probation at the end of which the services of the applicant could have been terminated, and that the contract can be terminated by either side on two weeks' notice, is said to reflect no more than fair and sensible provisions agreed to by both sides to give a degree of flexibility to otherwise absolute obligations. Those provisions were said by counsel for the Council to be "escape hatches" should something unexpected arise. The expression "contract of employment for a specified period of time" is not defined by the Regulations, or by the Act. However the object of Division 3 of the Act is to give effect to the Termination of Employment Convention and to the Termination of Employment Recommendation 1982: s.170CA. Furthermore an expression has the same meaning in Division 3 as in the Termination of Employment Convention: s.170CB. Relevantly Article 2, paragraph 2 of the Convention provides: "Article 2 1 ... 2 A Member may exclude the following categories of employed persons from all or some of the provisions of this Convention: (a) workers engaged under a contract of employment for a specified period of time or a specified task; ..." The expression "contract of employment for a specified period of time" in Reg. 30B(1)(a) is taken directly from the Convention. The interpretation directive in s.170CB must apply to the Regulations made under Division 3, as well as to Division 3 itself. The expression is therefore to be accorded its meaning in the Convention. The rules which govern a national court when construing an International Convention which has been enacted into Australian domestic law are more liberal than the traditional cannons of construction of the English common law. In the Commonwealth of Australia and Anor v State of Tasmania & Others (the Franklin Dam case) (1983) 158 CLR 1, Gibbs CJ at 93 and Brennan J at 222-223 considered that the relevant rules of interpretation are to be found in Article 31, paras 1 and 2 and Article 32 of the Vienna Convention on the Law of Treaties, and Murphy J at 177 assumed that the interpretation principles in these Articles applied. See also Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338 at 349, 356 and Victrawl Pty Ltd v Aotc Ltd & Others (1993) 117 ALR 347 at 350. The Vienna Convention was in force before the Termination of Employment Convention was adopted by the General Conference of the International Labour Organisation on 22 June 1982. The general rules of interpretation by the Vienna Convention are: "Article 31 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of the treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. Article 32 provides: Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable." Apart from the rule of interpretation laid down in the Vienna Convention, Mason and Wilson JJ in Shipping Corporation of India Ltd v Gamlen Chemical Co. (A'Asia) Pty Ltd (1980) 147 CLR 142 at 159 (with whose judgment Gibbs and Aicken JJ agreed) said: "It has been recognized that a national court, in the interests of uniformity, should construe rules formulated by an international convention, especially rules formulated for the purpose of governing international transactions such as the carriage of goods by sea, 'in a normal manner, appropriate for the interpretation of an international convention, unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation', to repeat the words of Lord Wilberforce in James Buchanan & Co. Ltd. v. Babco Forwarding & Shipping (U.K.) Ltd. [1978] AC 141 at 152; see also Stag Line Ltd. v. Foscolo, Mango & Co. Ltd. [1932] AC 328 at 350." In the present case no reference was made by the parties to these rules of interpretation, or to any extrinsic material that might throw light on the precise limits of the expression under consideration. In other cases it may become necessary to have regard to materials of the kinds referred to in Art. 31, para. 2 and Art. 32 of the Vienna Convention, but in the present case I consider that the contract of employment between the parties is so plainly not a contract for a specified period of time that I have not done so. In the expression, "specified" is the past participle of the verb "to specify". The ordinary meaning in the English language of "to specify" is to mention, speak of, or name (something) definitely or explicitly; to set down or state categorically or particularly; to relate in detail: Shorter Oxford English Dictionary, 3rd Edition. In the context of Art. 2, para. 2(a) of the Termination of Employment Convention "specified" identifies a period of time or a task the scope and parameters of which are stated definitely. A "specified period of time" is a period of time that has certainty about it. A contract of employment for a specified period of time would be one where the time of commencement and the time of completion are unambiguously identified by a term of the contract, either by the contract stating definite dates, or by stating the time or criterion by which one or other end of the period of time is fixed, and by stating the duration of the contract of employment. As the period of time is defined in this way, it is apt to refer to a contract of employment for a specified period of time as a contract of employment for a fixed term, although this is not the description used in the Regulation. A contract of employment to run throughout a nominated number of days, weeks, or years would be a contract of employment for a specified period of time. If the terms of the contract of employment, instead of identifying in this manner the period of time during which it is to run, provides that it is to run until some future event, the timing of the happening of which is uncertain when the contract is made, the contract will be for an indeterminate period of time. As the Court is concerned to determine the meaning of an expression used in an International Convention resort to decided cases under the English common law can be of only limited existence, but two decisions may be referred to as illustrations of the meaning of the expressions a "specified period" and "specified time" in the English language. In Reid v Dawson [1955] 1 QB 214 it was held that an agreement granting an exclusive right to mow hay and depasture for 364 days was a letting for use for a "specified period" of the year. But in Re Kutner [1921] 3 KB 93 it was held that to suspend an order of discharge from bankruptcy until the bankrupt paid 15s. in the Ł was to suspend the order for an indeterminate time, not for a "specified time" within the meaning of the relevant Bankruptcy Act. In the present case cl. 3 and Schedule 1 of the Employment Agreement clearly state both a commencement date for the employment and a cessation date, but in light of the right on either party to the contract arising under cl. 21(c) to bring the employment to an end on two weeks notice, and the right of the employer under cl. 21(d) to bring the employment to end without notice on payment of two weeks salary, the cessation date merely records the outer limit of a period beyond which the contract of employment will not run (unless a new Agreement is entered into pursuant to cl.29). Within the period stated in Schedule 1 the period of the contract of employment is indeterminate. At any point during the two year period identified by the commencement and cessation dates neither side could know with any certainty when the period of the contract of employment might come to an end. It is significant that the rights to terminate the contract of employment arising under cl.21(c) and 21(d) are not conditioned on a breach of any term of the contract. The rights are unqualified. Different considerations may apply where a contract of employment for a period of time fixed by clearly stated dates of commencement and cessation contains a term which permits either side to terminate the contract on breach by the other side. In such a case, it is possible that the contract would be characterised as contract of employment for a specified period of time notwithstanding the possibility that on breach of its term by one side or the other it may sooner come to an end. In this case, however, the unqualified rights to terminate without reason under cl.21(c) and cl.21(d) make it clear, in my opinion, that the contract cannot be so characterised. Counsel for the applicant argued that the Employment Agreement was taken outside the scope of the exclusion in Reg.30B(1)(a) as the need to have the applicant's duties performed by someone would continue indefinitely, certainly well beyond the cessation date in Schedule 1; and cl. 29 contemplated a new Agreement running beyond the cessation date. It was contended that in the circumstances the employment of the applicant should be characterised as "continuous", and not limited by the cessation date in the Employment Contract. I am unable to accept that submission. Whatever might happen to bring the employment to a sooner end under cl.21, the parties clearly agreed that the contract of employment entered into on 11 August 1993 would come to an end, "cease", on 4 April 1995. Any employment beyond that date would be dependent on the parties entering into a new Agreement. The employment was not continuous, but was to run only for a time not extending beyond 4 April 1995, and ending at an earlier date should either side in their unqualified discretion decide to give notice under cl.21(c). Counsel for the applicant also contended that it should be held that the Employment Agreement had the aim and purpose of avoiding the employer's obligation under Subdivisions B and C of Division 3 of Part VIA of the Act, within the meaning of Reg.30B(2), so that the exclusion in Reg.30B(1)(a) did not apply. It was argued that the contract of employment should be subjected to an objective test: does the operation of the terms of the contract have the effect of avoiding the employer's obligations under Subdivisions B & C; if so the Court should conclude that was the aim and purpose of the contract. Whatever the appropriate test might be where a contract of employment has been entered into after the enactment of the Industrial Relations Reform Act 1993, I decline to hold that the Employment Agreement, entered into before the Bill to enact the Industrial Relations Reform Act 1993 had been introduced into Parliament, and before there is any reason to suppose that either party had any knowledge of the proposed changes to the law, was entered into with the aim or purpose of avoiding statutory obligations that might fall on the employer in the future. In the present case the Court considered it appropriate to direct that the question whether the applicant was engaged under a contract of employment for a specified period of time be tried and determined as a preliminary issue. The direction was made as the trial of the other substantive issues raised by the application will involve several members of the respondent Council travelling long distances to Darwin to give evidence. As the preliminary issue was one which the parties wished to have determined on a consideration of the written Employment Agreement it was convenient to try it separately and before witnesses travelled to Darwin. It should not be thought however that questions of this kind will as a matter of course be determined as a preliminary issue. An allegation by an employer that an employee was engaged under a contract of employment for a specified period of time is not an allegation which raises a question as to the jurisdiction of the Court. The Court plainly has jurisdiction under Division 3 of Part VIA of the Act to determine the application for the remedies sought by the applicant. That the employee may have been engaged under a contract of employment for a specified period of time so as to be excluded from the operation of relevant sections of the Act will provide a ground of defence to the application. It is important to recognise that the evident intent of Parliament in enacting the new remedies available in s.170EE was that the remedies should be available without delay. It is appropriate to repeat the following observations made by Northrop J in Hobart on 30 August 1994 at a directions hearing in Mahnken v Saunders Logging Pty Ltd (unreported): "I should indicate also, as a matter of information to those who are interested in this area, that the practice of the Court in cases of this kind where a certificate is given by the Industrial Relations Commission that no settlement has been reached is that the matter should be listed for hearing as speedily as possible after that certificate has been given. Under the rules applicable to this type of case, the applicant must specify by affidavit a summary of his or her claim, the respondent must then state by affidavit the substance of the defence if the unlawful termination is disputed and there is then a conference before the Industrial Relations Commission at which it is important that the applicant and somebody who can speak with authority on behalf of the respondent is present. As a result of all those procedures, it should be obvious to the parties what the issues are between them and it is only in the rarest of cases that the Court will give directions as to any further interlocutory steps such as pleadings and further affidavits. Normally, arrangements will be made to have a date fixed for hearing as early as possible. These are in circumstances where the Parliament has created a new type of remedy, a remedy which should be made available as quickly as possible where an employee's employment has been terminated. Reinstatement may be an order that is made. If such an order is to be made, it should be made as speedily as possible." Having regard to the nature of the new remedies the Court will usually direct that questions such as whether an employee was engaged under a contract for a specified period of time or for a specified task, or was serving a period of probation, be tried at the same time as all other issues in the case. This is especially likely to be so where the question requires evidence from witnesses to prove the term of an oral contract, or where there is a dispute over facts relevant to that question. To try all questions at the one time is likely in most cases to hasten the final resolution of the application. For these reasons the preliminary question was decided adversely to the respondent. The Court declared that the applicant was not engaged by the respondent under a contract of employment for a specified period of time, and is not

excluded by Reg.30B(1)(a) from the operation of subdivisions B and C of Division 3 of Part VIA of the Act. I certify that this and the 15 preceding pages are a true copy of the Reasons for Judgment of Mr Justice von Doussa Associate: Dated: Hearing conducted by video-link between Adelaide and Darwin. Counsel for the applicant : Mr W J Priestley Solicitor for the applicant : W J McCormack Counsel for the respondent : Mr M Spazzapan Solicitor for the respondent : David Francis & Associates Date of hearing : 8 September 1994 Since preparing these reasons, I have read the decision of Northrop J in another matter in the Darwin Registry, Cooper v Darwin Rugby League Inc. (Action DI 1189 of 1994 - judgment 20 September 1994). His Honour there concluded that a contract of employment to run for 3 years but subject to the right of either party to terminate the contract on giving one month's notice was not a contract of employment for a specified period of time within the meaning of Reg.30B(1)(a).

C A T C H W O R D S Industrial Law - termination of employment - claim of unlawful termination - preliminary issue whether applicant was engaged under a contract of employment for a specified period of time - contract in writing - employment to cease two years after commencement - unqualified right on either side to terminate the contract sooner on 2 weeks notice - observation or desirability of determining claim for unlawful termination as speedily as possible. Industrial Relations Act 1988, ss.170CA, 170CB, 170CC, 170EE Industrial Relations Reform Act 1993 Industrial Relations Regulations 1989, Reg.30B Matter No. DI 130 of 1994 PHILLIP MARTIN ANDERSEN v UMBAKUMBA COMMUNITY COUNCIL VON DOUSSA J ADELAIDE 26 SEPTEMBER 1994

IN THE INDUSTRIAL RELATIONS COURT ) ) OF AUSTRALIA ) ) NORTHERN TERRITORY DISTRICT ) No. DI 130 of 1994 ) REGISTRY ) ) GENERAL DIVISION ) BETWEEN: PHILLIP MARTIN ANDERSEN Applicant AND: UMBAKUMBA COMMUNITY COUNCIL Respondent MINUTES OF ORDER JUDGE MAKING ORDER : VON DOUSSA J. WHERE MADE : ADELAIDE DATE OF ORDER : 26 SEPTEMBER 1994 THE COURT ORDERS THAT: 1. On the preliminary issue whether the applicant was engaged under a contract of employment for a specified period of time within the meaning of Reg.30B(1)(a) of the Industrial Relations Regulations 1989 the Court declares (i) that the applicant was not so engaged; and (ii)that the applicant is not excluded from the operation of Subdivisions B & C of Division 3 of Part VI A of the Act by Reg.30B(1)(a). 2. Extend time for making an application for leave to appeal from this decision so that time commences to run from the time when the Registry in Darwin makes a copy of these reasons for decision available to the parties. Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court of Australia Rules.