Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd

JUDGMENT: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 11 July 2003 Matter No IRC03/334 BRENDA LEE WYLIE AND FORMULA ONE CATERING SERVICES PTY LTD Application by Brenda Lee Wylie re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2003] NSWIRComm 207

1 This matter concerns an application, pursuant to s84 of the Industrial Relations Act 1996 ('the Act') filed by Brenda Lee Wylie ('the applicant') on 20 January 2003, seeking relief in respect to her alleged unfair dismissal by Formula One Catering Services Pty Ltd ('the respondent').

2 The date of the applicant's dismissal was in dispute. Mrs R Greenwood for the Broken Hill Town Employees' Union ('the Union'), in representing the applicant, argued that the effective date of dismissal was the 6 January 2003 when the applicant's name did not appear on the rosters for work as a waitress at a café ("City Perk") in Argent Street, Broken Hill. The respondent also leases the dining room and bistro at the Broken Hill Musicians Club.

3 The respondent, represented by Mr D Klepac of KPMG Legal, contended that the applicant was a casual employee whose last rostered work day was 18 December 2002. This contention raised the issue of whether the Commission should exercise its discretion, pursuant to s85(3) of the Act, to waive the twenty-one day limit for the filing of an unfair dismissal application: see s85(1).

4 The respondent raised two additional jurisdictional hurdles to the applicant's claim proceeding before the Commission. Firstly, it was alleged that the applicant was a probationary employee and therefore exempted from the provisions of Pt 6 ch 2 of the Act by virtue of s83(2)(b). Secondly, it was said that the applicant was a true casual employee, employed for a period of less than six months and, therefore excluded from the provisions of Pt 6 ch 2 of the Act by s83(2)(c) and the Industrial Relations (General) Regulations 2001. For reasons I shall later express, it has been only necessary for the Commission to consider the latter of the jurisdictional objections raised by the respondent.

5 The proceedings commenced on the 18 February 2003 via telephone conference with Mrs Greenwood and the applicant in Broken Hill with Mr Klepac in Sydney. Following unsuccessful attempts at conciliating a settlement of the claim, the Commission made a finding of unsuccessful conciliation, pursuant to s87 of the Act, and directed the parties to file submissions on the jurisdictional issues raised by the respondent.

6 The respondent submitted that the applicant was employed from 25 September 2002 to 18 December 2002 - a total of 85 days. During this period she worked a total of 38 days of varying hourly durations.

7 The Union submitted that the applicant was employed under the terms and conditions of the Broken Hill Commerce and Industry Consent Award 2001 ('the Award') under the Restaurants, Fish Shops and Cafes (where meals are served) Section.

8 It is relevant to observe that in the s84 application filed by Ms Wylie, she described herself as a casual employee. Moreover, the Union's submissions refer to the applicant as an "award casual".

9 The Union submitted that employment at the café was expected to be regular and ongoing with definite rostered days and times each fortnight. However, the applicant's daily hours of work varied from three to six. The applicant's pay records reveal that her hours were as follows: Fortnight Ending Total Hours 9 October 2002 58.25 23 October 2002 44.75 6 November 2002 37.5 20 November 2002 25.5 3 December 2002 5.5 18 December 2002 6.0

10 The applicant was paid the hourly award rate of $12.03 for a 19 year old casual with additional loadings for Saturday and Sunday work. It appears that for most of October 2002 the applicant worked every weekday. In November this became four days, then two days and from 27 November the applicant only worked on Wednesdays for the next four weeks. The following two Wednesdays were public holidays (Christmas and New Years Day) and the café was closed. The Union claimed that the applicant was available to work at other times and had sought additional hours.

11 In early December, the Union made representations to the respondent, on behalf of the applicant, and was informed that the reason for the reduction in her hours of work was a downturn in the business. At a meeting with the Union on 13 December 2002, the respondent assured the Union that the applicant's employment would continue.

12 On or about 6 January 2003, the applicant was advised that she was not required on Wednesday 8 January 2003 or Wednesday 15 January 2003. At no time was the applicant advised her employment had been terminated. The Union claimed that the respondent could give no satisfactory explanation as to why the applicant would not be working her usual Wednesday shift. A claim of alleged unfair dismissal was subsequently filed.

13 As earlier stated, I have been able to determine this matter by reliance upon the facts and circumstances surrounding the true nature of the applicant's contract of employment. I shall return to the detail of these matters shortly.

14 Section 83(2) of the Act relevantly provides as follows: [Exempted by regulations] This part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt 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 specific task, (b) employees serving a period of probation or qualifying period, (c) employees engaged on a casual basis for a short period, (d) employees whose terms and conditions of employment are governed by special arrangements providing particular protection in respect of termination of employment either generally or in particular circumstances, (e) employees in relation to whom the operation of the provisions of this Part causes or would cause substantial problems because of: (i) their particular conditions of employment, or (ii) the size or nature of the undertakings in which they are employed.

15 The section must be read in conjunction with cl 6 of the Industrial Relations (General) Regulation 2001 which provides as follows: 6 (1) For the purposes of section 83(2) of the Act, the following classes of employees are exempted from Part 6 Chapter 2 of the Act: … … … (d) employees engaged on a casual basis for a short period except employees who: (i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months and (ii) would, but for the dismissal, have had a reasonable expectation of continuing employment with the employer.

16 The proper construction of s83(2)(c) and the related Regulation was the subject of detailed Full Bench consideration in Shop, Distributive and Allied Employee's Association, New South Wales v Librus Pty Ltd [2001] NSWIRComm 46. At paras 26 to 28 the Full Bench said: In our view, any regulation made to give effect to that statutory facility to exempt from coverage must be limited to casual employees engaged for 'a short period'. Put another way, any regulation made to exempt a casual employee must be restricted to that authorised by the statute, and within its terms, but not so as to extend the authorising provisions of the statute to exempt persons not included within its permitted limits: See Carbines v Powell (1925) 36 CLR 88 at p92 per Isaacs J and at p95 per Higgins J where his Honour shortly stated that the offending regulation there 'oversteps the Act'. In that same case, Starke J commented that 'the regulations they refer to must be regulations convenient for carrying out the purposes of the Act, that is, the transmission and receipt of wireless messages, and not the purpose of manufacturing plant' (36 CLR at p97). Applying that reasoning to the instant case, a purpose of the Industrial Relations Act is to enable a casual employee to bring a claim for unfair dismissal except where a regulation be made exempting a casual employee engaged 'for a short period'. Any extension or restrictive refinement of that fundamental purpose by a regulation would result, in our view, in the regulation being invalid. So viewed cl 5B(1)(d) may properly be construed in a manner consistent with s 83(2)(c). The construction we place on the clause in terms of its plain meaning may be stated thus for the purposes of s83(2)(c)of the Industrial Relations Act - Employees engaged on a casual basis for a short period may be exempted from Pt 6 ch 2 by the regulations: s83(2)(c).

• Employees engaged on a casual basis for a short period, except if the casual employee meets certain specified conditions, are exempt from the unfair dismissals provisions: cl 5B(1)(d)

• A casual employee otherwise so exempt by being engaged for a short period is nevertheless able to bring an unfair dismissal claim if two specified conditions in cl 5B(1)(d) are satisfied, namely: (i) the employee concerned is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of a least 6 months (sub-para(i)), and (ii) would, if not dismissed, have had a reasonable expectation of continuing employment with that employer (sub-para(ii)). Shortly stated, that means a casual employee engaged for "a short period" and who would therefore be exempt is saved if the employee satisfies both sub-paras (i) and (ii). The essential enquiry, however, is whether the casual employee has been engaged for a short period - if not, then the specified conditions do not have to be considered as the employee concerned is not exempted from bringing a valid claim. Viewed in that way, we see no support for the proposition that the provision in the Regulation excludes a casual employee who has not been employed by an employer for a period of less than 6 months. The only exclusion contained in the Regulation, and consistent with the statute, is for a casual employee engaged for a short period unless the employee is saved by having had regular and systematic periods of employment during a period of at least 6 months (and even though such period may be "a short period") and had a reasonable expectation of continuing employment. In other words, the executive in making the Regulation has, as we think it is entitled to do, granted a limited exemption from the benefits of the statute in relation to casual employees engaged for a short period. What the Regulation has not done, and what we do not think it could do, is to say that engagement on a casual basis for a period of less than 6 months is necessarily engagement for a short period.

17 The decision in Librus makes plain that a casual employee is not automatically excluded from the unfair dismissal provisions of the Act. The Commission must first make findings as to whether the employee was engaged for a short period and secondly, whether the two specified conditions found in the Regulation have been satisfied.

18 Dealing with the first enquiry, it is obvious that the Act does not define what constitutes a "short period". As was observed in Librus, such a finding will be "a mixed question of law and fact to be determined in all the circumstances of a case arising" (see para 29).

19 The applicant's period of employment was about three months. In my opinion, this constitutes a short period for the purposes of the Act and the Regulation. This finding now takes the Commission to the specific conditions expressed in the Regulations.

20 The Commission is required to be satisfied that the employee was engaged on a regular and systematic basis for a sequence of periods of at least six months and had a reasonable expectation of continuing employment. It is important to note that both the conditions in the Regulation must be met once a finding of employment for a short period is made.

21 In my opinion, the applicant was engaged as a true casual employee. This must be so based on the following evidence: i) The applicant worked different hours each day and no two weeks of employment were consistent as to the total hours worked and on what days (except perhaps for the last three Wednesdays). ii) The applicant was paid the correct casual loaded rate under the Award (see Union's submission).

iii) The Union asserted that the applicant was an " award casual ".

iv) The applicant had ticked the casual employee box on her s84 application.

22 On the material before the Commission, I am unable to come to a view as to why the applicant's hours were so dramatically reduced from working every week day in October 2002 to only working one day a week in late November and December. Whatever be the reason, the factual position is that the applicant was not engaged on a regular and systematic basis for a sequence of periods of employment of at least six months. It follows that this condition in the Regulation cannot be satisfied.

23 As both the conditions in the Regulation must be met for the jurisdictional hurdle to be overcome, that would seemingly end the matter. However, I would add that, in light of the facts and circumstances of this case, I cannot agree with the Union's submission that the applicant had a reasonable expectation of continuing employment. Accordingly, this leg of the Regulation is not satisfied.

24 The inescapable result is that the Commission must find that the applicant is a class of employee for whom Pt 6 ch 2 of the Act does not apply. In the result, the application must be dismissed for want of jurisdiction.

25 I so order. The proceedings are concluded accordingly.

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