Dec 1320/97 M Print P6340
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.170CE application for relief re termination of employment
Paul Kinniburgh
and
Printers Press Pty Ltd
trading as Print City
(U No. 33114 of 1997)
SENIOR DEPUTY PRESIDENT WILLIAMS MELBOURNE, 30 OCTOBER 1997
Jurisdiction
DECISION
On 17 September 1997, Paul Kinniburgh (the applicant) lodged in the Commission an application, pursuant to s.170CE(1) of the Workplace Relations Act 1996 (the Act), for relief regarding the termination of his employment by Printers Press Pty Ltd trading as Print City (the respondent) on the grounds that the termination was harsh, unjust or unreasonable. On 22 September 1997, the respondent filed a Notice of Appearance indicating that it objected to the Commission hearing the application on jurisdictional grounds and that it wished to be heard prior to conciliation taking place.
According to the Notice of Appearance, the jurisdictional ground relied upon by the respondent is that the applicant is alleged to have been employed on a fixed term contract. Further, in that Notice of Appearance, under the heading "Reasons for Termination", the respondent stated:
Employee was not terminated. His four year contract came to an end!
When the matter came on for determination, the respondent relied upon both Regulations 30B(1)(a) and 30B(1)(b) of the Workplace Relations Regulations. S.170CC(1) of the Act prescribes certain classes of employees which, by regulation, may be excluded from the operation of provisions of Division 3 of Part VIA of the Act. Regulations 30B(1)(a) and 30B(1)(b) provide as follows:
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.
It should be noted that the respondent does not contend that the termination of employment was not a termination at the initiative of the employer. Rather it is submitted that the contract of employment under which the applicant was engaged was "for a specified period of time" and/or "for a specified task" and that the applicant is therefore precluded from pursuing a claim under s.170CE of the Act.
It is not disputed that the applicant worked for the respondent as an apprentice between 6 September 1993 and 5 September 1997. Submitted in evidence were the relevant Training Contract [Exhibit S1] and a letter dated 30 September 1993 from the State Training Board to the respondent recording, amongst other things that the "Contract of Training" had been registered. It is evident from the contract and the letter that the date of commencement of the contract was 6 September 1993, that the expected date of completion was 5 September 1997 and that the duration was 4 years [Exhibit S2].
In general, a person who seeks to have the Commission exercise its jurisdiction bears an onus of satisfying the Commission as to the existence of that jurisdiction. However, in a matter such as this, where a respondent disputes the existence of that jurisdiction on a ground prescribed by regulation, that respondent is required to lead evidentiary material or, at least, to put in a detailed manner its case in substantiation of its contention. In this case, there was no evidence from the respondent other than the documentary material referred to above. The respondent apparently was content to rely upon that material as establishing its contention as to the Commission's jurisdiction.
Regulation 30B(1)(a) requires three elements to be satisfied, namely:
· that the person be an "employee",
· that the person be engaged under a "contract of employment", and
· that the contract of employment of that employee be "for a specified period".
There has been no suggestion that the applicant was not an "employee" of the respondent. Indeed, if the analysis of the relevant law expounded by the Full Bench in Australian Railways Union and others and Public Transport Corporation (Vic) and others1 is adopted, it is difficult to comprehend how a person engaged as an apprentice could in this day and age conceivably be considered not to be an "employee". Further, the "contract of training" in this case was entered into pursuant to the provisions of the Vocational Education and Training Act 1990 (Vic) (the Victorian Act). It is abundantly clear from the provisions of that legislation that an "apprentice" is regarded as an employee. Most importantly, however, if the applicant were not an "employee", the first element required by the regulation would not be satisfied and the respondent could not submit that he was covered by the regulation.
In my view, although an apprentice may perform duties under a contract, the primary purpose of which is to provide training in a particular vocation, a distinction may be drawn between the "contract of employment" and the "contract of training". Whilst the two may coexist and operate in tandem, it is not necessary that the terms of both coincide. Clearly in this case, the applicant was engaged under a contract of training. He was, however, also engaged under a "contract of employment". The contract of training was an agreement between the respondent and the applicant whereby the former agreed to provide the latter with vocational education. The contract of employment was an agreement between the respondent and the applicant whereby the former agreed to employ the latter and the latter agreed to work for the former. In so far as any time period might have been specified, that time period related to the period of training, not the period of employment.
It follows from the existence of the distinction between the two that the fact that a contract of training is for a specified period does not necessarily mean that the contract of employment is for the same period. Whether or not the periods are the same will depend upon the circumstances of each case. In this matter, the respondent did not suggest that, independently of the contract of training, there was any agreement for employment for a specified period. The respondent relied entirely on the contract of training as the sole grounds for determining the period of employment. There is, therefore, no evidence that would lead me to a conclusion that, prior to the commencement of the applicant's employment, there had been any discussions with him as to the intended length of that employment. In those circumstances, I cannot be satisfied that there was any time period specified for the "contract of employment" under which the applicant was engaged.
Even if, however, I were to accept that there is no distinction in this case between the "contract of employment" and the "contract of training" and/or that there had been agreement that the proposed length of the "contract of employment" was to be the same as the proposed length of the "contract of training", I would still be unable to accept that the "contract of employment" was "for a specified period". This latter phrase was the subject of consideration in Andersen v Umbakumba Community Council2 in the context of Regulation 30B(1)(a) of the former Regulations, the terms of which were not materially different to those of the current regulation. In that case, von Doussa J stated:
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 ed. In the context of Art2, 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 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 for a specified period of time as a contract for a fixed term, although this is not the description used in the regulation.
...
In the present case cl 3 and Sch 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 an end without notice on payment of two weeks' salary, the cessation date merely records the outer limit of a period beyond which the contract will not run (unless a new agreement is entered into pursuant to cl 29). Within the period stated in Sch 1 the period of the contract 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.3
As stated earlier, the "contract of training" in this case was entered into pursuant to the provisions of the Victorian Act. Under s.60(1) of the Victorian Act, the term of such a contract is determined by the State Training Board (the STB). Although it may be known that the term of such a contract in relation to a particular vocation would generally be of a certain length, it is clear that, until the STB fixes the time limit for an individual contract, the length of that contract is not specified. In this case, the duration of the contract was not determined by the STB until after the applicant commenced employment. It would appear, therefore, that he was not, at least initially, engaged under a contract of employment that had a specified period. Further, under ss.60(2) and (3) of the Victorian Act, the STB has the power to reduce or extend the term of such a contract. Under s.61(1) of that Act, either the applicant or the respondent had an unqualified right to terminate the contract within the first three months.
It follows that, despite the original determination by the STB that the duration of the contract would be four years, the length of the contract was uncertain. In my view, therefore, the contract cannot be categorised as one for a specified period.
For similar reasons, I cannot accept that the "contract of employment" was "for a specified task". It was submitted that the "specified task" relative to this contract of employment was the undertaking of a course of training as an apprentice. The applicant was, however, expected to perform and had in fact performed work for the respondent. He was not merely engaged to be trained.
For the above reasons, I am not satisfied that the applicant was engaged under a contract of employment for a specified period of time or for a specified task. The applicant does not, in my view, fall within a class of excluded employees and the Commission has the jurisdiction to deal with his application. The application will be referred to a member of the Commission for conciliation.
I would add that, in view of the conclusions I have reached, it has not been necessary for me to consider the submissions made on behalf of the applicant in relation to the application or otherwise of the provisions of the Graphic Arts - General - Interim Award 1995 to the contractual relationship between the applicant and the respondent.
BY THE COMMISSION:
SENIOR DEPUTY PRESIDENT
Appearances:
P. Flint for Paul Kinniburgh.
R. Stambulic and A. Thomas for Printers Press Pty Ltd trading as Print City.
Hearing details:
1997.
Melbourne:
October 22.
Decision Summary
Termination of employment - unfair dismissal - unlawful termination - jurisdiction - apprentice printer - whether contract fixed term or for specified period - applicant's apprenticeship governed by State Training Board contract - Commission drew distinctions between "contract of employment" and "contract of training" - period of contract of training did not determine period of contract of employment - nevertheless, Commission found length of contract of training was uncertain, despite determination by Board (after commencement) that term was four years - Anderson v Umbakumba Community Council applied - Commission found applicant not employed for specified task as he worked for respondent and was not merely engaged to be trained - applicant not excluded - matter referred for conciliation. | ||||
Kinniburgh v Printers Press P/L | ||||
U No 33114 of 1997 |
Print P6340 | |||
Williams SDP |
Melbourne |
30 October 1997 | ||
Printed with the Authority of the Australian Industrial Relations Commission
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