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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
Skippers Aviation Pty Ltd
Appeal by Richard Wilkinson against the decision
of Senior Deputy President Polites in transcript of 14.12.00 and in
writing of 15.12.00 (Print T4653) in matter U No.60132 of 2000
(C No. 2001/51)
VICE PRESIDENT McINTYRE
SENIOR DEPUTY PRESIDENT CARTWRIGHT
SYDNEY, 30 APRIL 2001
Appeal - appeal lodged out of time - alleged harsh, unjust or unreasonable termination of employment - whether employee serving a period of probation determined in advance - change from casual to full-time employment -reg.30B(1)(c)
 In a decision in transcript given on 14 December 2000, Polites SDP held that the Commission had no jurisdiction to entertain an application lodged by Richard Wilkinson seeking, pursuant to s.170CE(1) of the Workplace Relations Act 1996, relief in respect of the termination of his employment by Skippers Aviation Pty Ltd (the company). His Honour's decision, edited and slightly expanded, was issued in writing on 15 December 2000 (Print T4653).
 On Monday 8 January 2001, Mr Wilkinson filed a notice of appeal under s.45 which commenced:
"Notice of an appeal is given by Richard William Anthony Wilkinson against a decision to refuse to exercise jurisdiction in a matter arising under this Act by Senior Deputy President Polites at Perth on 15 December 2000 in this matter."
 Rule 11(2) of the Australian Industrial Relations Commission Rules, provides, so far as is relevant:
"An appeal must be instituted:
(a) before the end of 21 days after the date of the award, order, decision or opinion appealed against; or
(c) on application - within such further time as is allowed by a Full Bench."
 Twenty-one days from 14 December 2000 (the date of the decision in transcript) ended on Thursday 4 January 2001 and from 15 December 2000 (the date of the written decision) ended on Friday 5 January 2001. On 5 February 2001, Mr Wilkinson filed an application for an extension of time for instituting an appeal supported by an affidavit of Timothy Lyons, a principal of Mr Wilkinson's solicitors.
 The appeal was heard in Perth on 5 April 2001. Mr A Lucev of counsel appeared, by leave, for Mr Wilkinson and Mr C Edwards of counsel appeared, by leave, for the company.
 In the circumstances before us, in particular that the appeal was lodged only one or two days out of time, we have decided to grant Mr Wilkinson's application for an extension of time.
The decision of Polites SDP
 Polites SDP, in his decision, determined, as we earlier said, that the Commission had no jurisdiction to entertain Mr Wilkinson's application for relief in respect of the termination of his employment. The basis for this determination was his Honour's view that Mr Wilkinson was excluded by reg.30B of the Workplace Relations Regulations from bringing his application.
 Regulation 30B, so far as is relevant to the present matter, provides:
"(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:
(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
(ii) the period, or the maximum duration:
(A) is more than 3 months; and
(B) is reasonable, having regard to the nature and circumstances of the employment".
 In his decision, Polites SDP made the following findings:
"1. The applicant commenced casual employment with Skippers Aviation as a Cessna 441 captain in October 1997. He needed endorsement on that aircraft but obtained it and continued casual employment until January 2000.
2. On 7 January the applicant was offered employment as a full time pilot. At the interview he was handed a letter dated 7 January containing written confirmation of that offer.
3. The offer contained the following conditions:
`I have pleasure in confirming your appointment as a Conquest captain. Your appointment shall be in accordance with Skippers Aviation Enterprise Bargaining Agreement and the General Aviation Award (as varied from time to time). Your appointment is also subject to the following conditions:-
- Commencement date for salary purposes will be the 17th January 2000.
- A 3 month probation period will apply in which either party may terminate this agreement with 24 hours written notice. After 3 months normal award conditions will apply.
- You will be frozen on type for 12 months from the day of your appointment. After this period you may bid for other positions that may become available.
- As discussed, due to the ad-hoc nature of our conquest operations it is impossible for us to provide a firm roster of our requirements and ask that you assist by continuing to provide us with maximum flexibility in regards to rostering.
Please acknowledge receipt of these conditions by signing below and returning to me as soon as possible. Once again congratulations and welcome to the Skippers Team.' [Exhibit L3]
4. I find the offer was accepted on 14 January by the applicant. This finding is based on the evidence of the applicant that in subsequent discussions he sought a change to the freeze on promotions and on the date of written acceptance by the applicant.
5. I find the employment conditions under the full time contract were clearly different to the arrangements in place when the applicant was engaged as a casual. The difference include annual leave arrangements, sick leave and the right to be rostered in advance although this roster was often varied. I also accept that in practice there was little change in the applicant's actual duties.
6. I find that the applicant was terminated on 7 April 2000."
 His Honour then said:
"I think based on these findings the better view is that the contract operated from 14 January. Accordingly, the termination was within the three month probation period. Even if I was wrong in this finding and the contract came into existence on 7 January, the applicant was still terminated on the anniversary of three months ie he was not terminated after the three months probationary period.
In this respect I reject the argument of Mr Lyons that the probationary period ended after 12 weeks. The terms of the contract are to be given the ordinary meaning and three months in my view means three calendar months.
In relation to the question of whether the probationary period was prior to the period of employment I propose to follow the decision in A. Steel -v- Picture Box Pty Ltd [Print R7757]. I find that the permanent employment entered into by the applicant was new employment in accordance with a new contract. The arrangements under which the applicant worked as a casual were clearly different. In my view the following passage in Steel is relatively indistinguishable from the facts in this case:
`That agreement, providing as it did that the period of probation was to start upon the commencement of full time employment, is a clear indication of the intention of the parties to the agreement that the full time employment relationship was to be a new relationship and that, in the particular circumstances of this case, the part time employment was to constitute a temporary employment relationship that was to come to an end before the full time employment commenced.' [ibid. para 13]
During argument I referred Counsel to the decision in Saphron Pty Ltd [Print T2672]. I note Mr Lyons' submission that in effect to follow Steel in this case would lead to a situation of denying the applicant a right to be heard which he would have had if he had continued as a casual. Such a result would be irrational and unjust within the meaning of Saphron and should be avoided. There is some force in this argument but I must apply the statutory provisions. As was pointed out in Saphron Regulation 30B(1)(c) operates in terms of the employment relationship. The employment relationship here I think is the employment relationship brought about by the full time contract of employment.
Accordingly, I find that the notice of the probationary period was given prior to the commencement of this new employment and the termination occurred within that probationary period.
It follows in my view that the Commission has no jurisdiction to entertain this application by virtue of the operation of Regulation 30B."
The approach to the appeal
 The company argued that the appeal was to be determined in accordance with the principles in House v R (1936) 55 CLR 499; that is, in accordance with the principles applicable to an appeal from a discretionary decision.
 We do not agree. In our view, the decision of Polites SDP is not a discretionary one. It is a decision that reg.30B operates on the facts as found by his Honour to exclude Mr Wilkinson from bringing an application for relief in respect of the termination of his employment. As a Full Bench (Munro J, Duncan DP and Jones C) said in Timba-line Designs (23 November 1998) Print Q8992, paragraph , this is an issue of mixed fact and law.
 In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 174 ALR 585, Gleeson CJ, Gaudron and Hayne JJ said:
" Because a Full Bench of the Commission has power under s.45(6) of the Act to receive further evidence on appeal, an appeal under that section is properly described as an appeal by way of rehearing. And because there is nothing to suggest otherwise, its powers under subs (7) are exercisable only if there is error on the part of the primary decision-maker. And that is so regardless of the different decisions that may be the subject of an appeal under s.45."
 Accordingly, in the circumstances of the present appeal, the issue is, in our view, whether Polites SDP was in error in deciding that reg.30B excluded Mr Wilkinson from bringing an application for relief in respect of the termination of his employment. If there is an error, it could be an error of law, an error of fact or an error of both law and fact.
Consideration and conclusion
 In January 2000, Mr Wilkinson and the company reached agreement that Mr Wilkinson's employment would change from casual employment to full-time employment. A term of the agreement was that "A 3 month probation period will apply".
 In Timba-line Designs, to which we have referred earlier, the Full Bench said:
"14. ... there is adequate authority to sustain the view that regulation 30B should be construed as referring to an employee serving a period of probation, the duration of which is determined in advance of `the employment'. That construction is not only well established on the numerous precedents referred to by Mr Willoughby-Thomas. It is supported also by the requirement, later in the same contexts, of regulation 30B(1)(c) for the duration of the period to be reasonable, `having regard to the nature and circumstances of the employment' (emphasis supplied)."
 "The employment", in advance of which a period of probation may be determined, may, from time to time, alter. In the present case it did. It altered from casual employment to full-time employment pursuant to the agreement reached between Mr Wilkinson and the company in January 2000.
 In his decision, Polites SDP said:
"I find that the permanent employment entered into by the applicant was new employment in accordance with a new contract."
 We respectfully agree. A new contract was made in January 2000. Pursuant to it Mr Wilkinson entered into full-time employment. The full-time employment was different from Mr Wilkinson's casual employment and, in our view, was correctly described by his Honour as new employment. As such it is, in our view, "the employment" with respect to which the period of probation is to be considered. We accept that Mr Wilkinson's duties as a full-time employee were little, if at all, different from those as a casual employee. As a casual employee he was a Cessna Conquest captain. As a full-time employee he remained a Cessna Conquest captain. But, in that the employment changed from casual to full-time, the basis of it changed in such a way as to satisfy us that Polites SDP was correct in expressing the view that there was a new employment.
 We have used the term "the employment" because it is the term used in Timba-line Designs. In the course of his submissions, counsel for Mr Wilkinson referred us to decisions in which it was held that the period of probation must be determined in advance of "the employment relationship" and to decisions that "the employment relationship" is to be distinguished from the contract of employment. This distinction was, for instance, made by Wilcox CJ in Siagian v Sanel Pty Ltd (1994) 122 ALR 333. The alleged distinction, however, is the subject of some controversy. For instance, in Association of Professional Engineers, Scientists and Managers Australia v Skilled Engineering Pty Ltd (1994) 122 ALR 471) Gray J said at 481:
"The confusing and misleading distinction between the relationship of employer and employee and the contract of employment, if it ever existed, is dead and gone."
 In the present matter, Polites SDP, as we have earlier noted, found that the new employment was in accordance with a new contract. There is, accordingly, no need for us to express a view as to whether there is a distinction between the employment relationship (or, the employment) and the contract of employment. And, as this matter was not fully argued before us, we refrain from doing so.
 The next question is whether, at the time of his termination (7 April 2000), Mr Wilkinson was serving a period of probation determined in advance of his employment; that is, his full-time employment. We agree with Polites SDP's conclusion that he was, although, as will be seen, we analyse the facts somewhat differently from his Honour.
 As we have said, Mr Wilkinson's employment was terminated on 7 April 2000. Whether, on 7 April 2000, Mr Wilkinson was serving a period of probation of 3 months or less depends, among other things, on when the period started. There are three possible dates - 7 January 2000, 14 January 2000 or 17 January 2000.
 If a period of probation of 3 months or less started on 14 or 17 January 2000, Mr Wilkinson was still serving that period on 7 April 2000. If, however, it started on 7 January 2000, there is an issue whether Mr Wilkinson was serving that period of probation on 7 April 2000.
 Mr Wilkinson's evidence-in-chief as to what happened on 7 January 2000 is (transcript PN75):
"...when I returned from leave the day of my first line flight, returning for leave, I was telephoned by operations and asked if I could come in early to attend a meeting with the operations manager. At that meeting he asked me if I would still like a position full time, I replied, `You bet, I certainly would', and he then offered me that position, which I accepted. He handed me a letter, which confirmed that appointment and it also listed some other terms and conditions. He asked me to sign the letter and return it to him, which I did the following week and from that point forward I'd become a full time employee. In terms of the work I did, that really didn't change, they continued to ring me the night prior to a flight to give me the details of the flight and my actual requirements at work were identical. I would arrive at work at the appropriate time, conduct the flight and then I was free to leave once all the company paperwork had been completed."
 The letter referred to by Mr Wilkinson is set out in finding number 3 in Polites SDP's decision (see our paragraph  above). Subsequent evidence of Mr Wilkinson established that the copy of the letter he signed and returned to the company was returned on 14 January 2000. The letter includes "Commencement date for salary purposes will be the 17th January 2000."
 Counsel for Mr Wilkinson argued that Mr Wilkinson's full-time employment started on 7 January 2000. This argument was based, in part, on Mr Wilkinson's evidence set out earlier. Counsel's analysis is that, prior to the letter dated 7 January 2000 being produced by the company, agreement had been reached that Mr Wilkinson would become, from that day (7 January 2000), a full-time employee. In our opinion, this submission involves an incorrect view of Mr Wilkinson's evidence about the 7 January 2000 interview. We think that the correct view of this evidence is that, on 7 January 2000, Mr Wilkinson was offered full-time employment subject to the terms of the letter. Counsel's argument was also based on the circumstance that the letter said that the 17 January 2000 commencement date was for "salary purposes". While this is so, "salary purposes" are the essence of a change from casual to full-time employment. The salary changes from one calculated by reference to hours worked on such days of the week as the employee works (as is appropriate to casual employment) to a weekly salary (as is appropriate to full-time employment). Accordingly, in our view, Mr Wilkinson's full-time employment did not start on 7 January 2000 but on 17 January 2000.
 In his decision, Polites SDP expressed the view that "the contract operated from 14 January". In our view, however, for the reasons we have given, the new employment did not start until 17 January 2000. The agreement that there be a change from casual employment to full-time employment was, however, reached, in our view, on 14 January 2000 when Mr Wilkinson returned the letter signed by him to the company. But the agreement, according to its terms, did not, in our opinion, operate until 17 January 2000. Nothing, of course, turns on whether the agreement operated from 14 or 17 January 2000 for the purposes of determining whether, on 7 April 2000, Mr Wilkinson was serving a period of probation of 3 months or less.
 Polites SDP, in his decision, said:
"Even if ... the contract came into existence on 7 January, the applicant was still terminated on the anniversary of three months ie he was not terminated after the three months probationary period".
 Regulation 30B(1)(c)(i) says "3 months or less". This is to be interpreted by reference to the relevant provisions of the Acts Interpretation Act 1901.
 Section 22(1) of the Acts Interpretation Act includes:
"In any Act, unless the contrary intention appears:
(b) `Month' shall mean calendar month;
(g) `Calendar month' means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month".
 Section 46(1) of the Acts Interpretation Act includes:
"Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then:
(a) unless the contrary intention appears, expressions used in any instrument so made, granted or issued shall have the same meanings as in the Act conferring the power, and this Act shall apply to any instrument so made, granted or issued as if it were an Act and as if each such rule, regulation or by-law were a section of an Act".
 Accordingly, no contrary intention in our view appearing, "3 months" in reg.30B(1)(c)(i) means 3 calendar months; that is, a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the third month following.
 If, therefore, a period of probation which commenced on 7 January 2000 was to be of 3 months or less it had, in our view, to end no later than immediately before the beginning of 7 April 2000. If it ended later than this, it was a period of more than 3 months and, pursuant to reg.30B(1)(c)(ii), a determination would have to be made whether the period was reasonable, having regard to the nature and circumstances of the employment. We do not need to take this further as, for the reasons we have given, the period did not, in our view, commence until 17 January 2000.
 Having regard to some of the submissions before us, we have considered whether, in the circumstances of this case, Mr Wilkinson's period of probationary employment was a sham. Under his previous casual employment Mr Wilkinson had been a Cessna Conquest captain for about two years. Under his new full-time employment he continued as a Conquest captain carrying out essentially the same duties as before. We think, at least as far as technical ability as a Cessna Conquest pilot was concerned, he must have proved himself before he started the new full-time employment. We have, however, come to the conclusion that the period of probation was not a sham. Mr Wilkinson's employment, both as a casual and a full-time employee, was governed by the Skippers Aviation Pty Ltd Pilots' Enterprise Bargaining Agreement 1996 (Print N5751). This agreement incorporates certain provisions of the Pilots (General Aviation) Award 1984. Clause 36(a) of that award provides:
"A pilot shall be employed, to perform duties as a pilot in accordance with this award, on a contract for permanent hire, or a contract for casual hire in accordance with subclause (i) of this clause. A pilot may for the first three months of such engagement, be employed on a probationary basis from day to day at the appropriate weekly rate fixed by this award, and terminable on a week's notice, provided that probationary appointments shall be notified in writing at the commencement of employment."
With the change from casual to full-time employment, a change occurred in the basis on which Mr Wilkinson performed his work as a Cessna Conquest captain. He ceased to perform his work on a casual basis and performed it on a full-time basis. Bearing in mind the different obligations imposed by casual employment and full-time employment, we do not draw the conclusion that Mr Wilkinson's period of probation as a full-time employee was a sham.
 We add that, having regard to clause 36(a) of the award, it may be that the reference in the 7 January 2000 letter to either party being able to terminate the agreement on 24 hours notice is not correct. (Clause 36(a) refers to termination on a week's notice.) (We note, however, that when Mr Wilkinson's employment was terminated on 7 April 2000 he was paid a week's pay in lieu of notice.)
 For the reasons we have given, we have concluded that Polites SDP was not in error in determining that Mr Wilkinson was excluded by reg.30B from bringing an application for relief in respect of the termination of his employment. In view, however, of the issues raised, the matter is, in our opinion, of such importance that leave to appeal should be granted (s.45(2)). We grant leave. However, for the reasons we have given, we confirm his Honour's decision that Mr Wilkinson is excluded by reg.30B from bringing his application.
BY THE COMMISSION:
A Lucev of counsel, by leave, for Richard Wilkinson
C Edwards of counsel, by leave, for Skippers Aviation Pty Ltd
Date and place of hearing:
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