[2008] AIRC 340 |
PR981505
|
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.643 application for relief in respect of termination of employment
Brett William Fensom
and
SCT Transport Services Pty Ltd
(U2008/2026)
COMMISSIONER HARRISON |
SYDNEY, 16 APRIL 2008 |
Termination of employment – jurisdiction – employee engaged on a seasonal basis
DECISION
BACKGROUND
[1] On 2 January 2008 Mr Brett Fensom (the Applicant) lodged an application under s.643(1)(a) of the Workplace Relations Act 1996 (the Act) on the ground that the termination of his employment by SCT transport Services Pty Ltd (the Respondent) was harsh, unjust and unreasonable.
[2] Mr Fensom was employed as a driver at Broadwater Sugar Mill.
[3] On 25 January 2008, SCT transport Services filed a Notice of Motion to dismiss the application for want of Jurisdiction (Notice of Motion) on the basis that the employee was engaged as a seasonal worker and was therefore excluded from making an application.(s.638(1)(g)).
[4] The Respondent further objected to conciliation before their jurisdictional objection was determined by the Commission.
[5] In accordance with s.648 I wrote to the Transport Workers Union (TWU), who were representing the Applicant and the Respondent on 30 January 2008 and invited them to provide submissions in relation to the jurisdictional objection by 15 February 2008 and submissions in reply by 22 February 2008.
[6] I received material from Mr C. Broadbent, representing the Respondent, on 15 February 2008 and material from the TWU, on behalf of the Applicant, on the same day.
[7] Neither the Applicant nor Respondent provided submissions in reply to the other party’s material.
LEGISLATIVE FRAMEWORK
[8] The relevant provisions of the Act are as follows:
638 Exclusions
Exclusions from Subdivisions B, D and E and sections 660 and 661
(1) The following kinds of employee are excluded from the operation of Subdivisions B, D and E and sections 660 and 661:
(g) an employee engaged on a seasonal basis, within the meaning of subsection (8).
(8) For the purposes of paragraph (1)(g), an employee is engaged on a seasonal basis if the employee is engaged to perform work for the duration of a specified season.
(9) For the purposes of subsection (8), a season is a period that:
(a) is determined at the commencement of the employee’s engagement (the commencement time); and
(b) begins at the commencement time; and
(c) ends at a time in the future that:
(i) is uncertain at the commencement time; and
(ii) is related to the nature of the work to be performed by the employee; and
(iii) is objectively ascertainable when it occurs.
Note: Examples of seasons are:
(a) the part of a year characterised by particular conditions of weather or temperature;
(b) the part of a year when a product is best or available;
(c) the part of a year marked by certain conditions, festivities or other activities.
(10) The regulations may provide that a particular period is, or is not, a season for the purposes of subsection (8).
[9] s.638(1)(g) is a provision inserted into the legislation as a result of The Workplace Relations Amendment (WorkChoices) Act 2005. There are no decisions of this Commission dealing with this particular provision, however, with respect to the amendment, the Explanatory Memorandum to the Workplace Relations Amendment (Work Choices) Bill 2005 (the Explanatory Memorandum) relevantly provides:
“Item 91 – At the end of subsection 170CBA(1)
2078. Proposed paragraph 170CBA(1)(g) would exclude an employee who is engaged on a seasonal basis, within the meaning of subsection 170CBA(6A), from the operation of Subdivisions B, E and F of Part VIA and sections 170CL and 170CM.
2079. An employee employed on a seasonal basis would retain access to a remedy under section 170CK.
2080. In SPC Ardmona v Esam and Organ [PR957947], the AIRC held that a contract that would run until the end of a season (that was not defined to end at a certain predetermined date) would not be a contract for a specified period of time such as to attract the exclusion in paragraph 170CBA(1)(a). In that decision, the AIRC applied previous case law which provided that, if a contract of employment ‘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.’ Therefore, the AIRC held that such a contract would not be within the exclusion in paragraph 170CBA(1)(a).
2081. The exclusion provided by paragraph 170CBA(1)(g) would apply to an employee engaged under a contract of employment which the parties understood to be short term or temporary in nature and would run until some future event:
2082. The exclusion provided by paragraph 170CBA(1)(g) would not create an additional subset of casual employment. The exclusion for casual employees is provided by paragraph 170CBA(1)(d).
2083. Paragraph 170CBA(1)(g) would be consistent with the principle, reflected in paragraphs 170CBA(1)(a) and (b), that employees who are engaged on a defined short-term basis which will end at a time foreseen by the parties should not be able to access remedies under Subdivisions B, E and F of Part VIA and sections 170CL and 170CM.
Item 96 – After subsection 170CBA(6)
2090. This item would insert new subsections 170CBA(6A), (6B) and (6C).
2091. Proposed subsection 170CBA(6A) would provide that, for the purposes of the ‘seasonal employee’ exclusion in proposed paragraph 170CBA(1)(g), an employee must be engaged to perform work for the duration of a specified season.
2092. Proposed subsection 170CBA(6B) would define season, for the purposes of the ‘seasonal employee’ exclusion in proposed paragraph 170CBA(1)(g), as a period that:
2093. Save that the timing of the future event will be uncertain until it occurs, it is intended that the ‘seasonal employee’ exclusion would operate in a similar manner to the ‘specified period of time’ exclusion in subparagraph 170CBA(1)(a). (My emphasis).
RESPONDENT’S SUBMISSIONS
[10] Mr Broadbent submitted that the company contracts with Sunshine Sugar Pty Ltd to transport harvested sugar cane from Harwood, Condong and Broadwater in NSW.
[11] He further submitted that sugar cane is only ready for harvest between approximately June and December each year. However, the actual dates of harvest in any year are influenced by a number of factors outside of the Respondent’s control and therefore it is not possible to accurately predict when one season may start or finish. He submitted these factors to be:
[12] Notwithstanding this, Mr Broadbent submitted that the nature of work is seasonal in that it only ever covers a part of the year when the particular crop is available for harvest.
[13] Mr Broadbent supplied details of the Applicant’s offer of employment. It was submitted that Mr Fensom was offered employment as a truck driver by a letter dated 6 June 2007. An extract from the letter reads:
[14] “It is with pleasure that we write to confirm the offer of employment as a fixed term contract employee with Twentieth Super Pace Nominees Pty Ltd trading as SCT Logistics (SCT) commencing in the 2007 Sugar Season as defined by the Sugar Co-op at your allotted mill and concluding at the end of the cane season…”
[15] The letter of offer also included a provision to terminate. It reads:
“SCT may terminate your employment at any time without reason or notice. SCT may also terminate your employment without notice or payment in lieu of notice for serious misconduct…”
[16] The Applicant’s employment was governed by an Australian Workplace Agreement (AWA) titled “SCT Logistics Seasonal Cane Transport Australian Workplace Agreement 2007”. A copy of lodgement receipt dated 3 July 2007 by the Workplace Authority was supplied to the Commission.
[17] The Application clause of the AWA relevantly provides:
“3. APPLICATION
a) (i)This agreement has been struck primarily to provide for secure employment for full time seasonal employees of the employer servicing the contract between the employer and its client sunshine sugar Pty Ltd and who are engaged in seasonal can transport at Harwood, Condong and Broadwater.
(ii)The parties acknowledge that the work conducted by the employer on behalf of his client, Sunshine Sugar (or any successor) is seasonal work and may come to an end as a result of the conclusion of such a season commonly known as “the crush”
[18] Mr Broadbent submitted that the Applicant was made aware of the seasonal nature of the work prior to his commencement and therefore s638(9)(a) of the Act has been satisfied as the period had been determined at the time of the employee’s engagement.
[19] The Respondent asserted that the numerous references to ‘season’ and ‘seasonal nature’ in both the letter of offer and AWA are evidence that the employee was engaged as a seasonal worker and is therefore excluded from bringing an application under s.638(1)(g)
APPLICANT’S SUBMISSIONS
[20] The TWU acknowledged that both the letter of offer and the AWA refer to seasonal employment, however, they submitted that from the text of both documents and the practical operation of the contract, the period of engagement could end at any time before the end of the nominated season and could continue beyond the end of that season.
[21] The TWU submitted that the use of the word ‘may’ in the Application clause of the AWA is significant in this regard.
“(ii)The parties acknowledge that the work conducted by the employer on behalf of his client, Sunshine Sugar (or any successor) is seasonal work and may come to an end as a result of the conclusion of such a season commonly known as “the crush”
[22] The TWU further submitted that the letter of offer provided that the Respondent could terminate Mr Fensom’s employment at any time without reason or notice and therefore his contract of employment included an unconditional right of termination during its term.
The TWU cited Ogilvie v Warlukurlangu Artists Aboriginal Association Incorporated (Hampton DP PR921908 28 August 2002, unreported) as an authority for the proposition that where a contract of employment provides a broad or unconditional right of termination during its term then the period of employment is indeterminate and not for a specific period of time.
[23] The principles espoused by Hampton DP were subsequently adopted by a Full Bench in Ledington v University of Sunshine Coast (2003) 127 IR 152.
[24] The TWU submitted that a contract of seasonal employment is distinguishable from a contract for a specified period only in that the end of the contract is fixed by reference to an event rather than a particular date. Further, they submitted that fixed term and seasonal contracts are analogous for present purposes and the principle above is applicable to seasonal employees.
[25] This submission is consistent with the extract from item 96 of the Explanatory Memorandum which reads:
“Save that the timing of the future event will be uncertain until it occurs, it is intended that the ‘seasonal employee’ exclusion would operate in a similar manner to the ‘specified period of time’ exclusion in subparagraph 170CBA(1)(a).”
FINDINGS
[26] I have considered both parties submissions in this matter. Having regard to the evidence submitted by the Respondent, I accept that it was the intention of the Respondent to engage the applicant as a seasonal employee; however, in order for me to find that the Applicant was engaged as a seasonal worker I must have regard to the legislative provisions and relevant authorities.
[27] I note that clause 37 of the AWA includes a termination provision where either party can terminate the employment with (1) week’s notice or the payment or forfeiture of one (1) weeks pay.
In Andersen v Umbakumba Community Council (1994) 126 ALR 121 Von Dousa J held; “ In the present case cl. 3 and Schedule 1 of the 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 being the employment to an end on two weeks notice…the cessation date merely records the outer limit of a period beyond which the contract of employment will not run”
“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…The unqualified rights to terminate without reason under cl.21(c) and 21(d) make it clear, in my opinion, that the contract can not be so characterised ( as one contract of employment for a specified period of time).”
[28] The provision in the Applicant’s contract of employment relating to notice of termination in addition to the provision included in the Applicant’s statutory instrument can be regarded as unqualified as they do not require a breach of contract for either party to provide notice of termination.
[29] In these circumstances I cannot characterize the employment arrangement as being for a specific season nor the applicant as being engaged on a seasonal basis, within the meaning of s.638(8)
[30] The Respondent’s notice of motion to dismiss the Application for want of jurisdiction is therefore dismissed. The application will proceed to conciliation.
BY THE COMMISSION:
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code {C}>