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Workplace Relations Act 1996

s.170CE application for relief in respect of termination of employment

C.G. Henderson


John Holland Pty Ltd




Alleged unlawful termination - contract of employment for a specified task or a specified period of time - jurisdiction.



[1] This Application pursuant to section 170CE of the Workplace Relations Act 1996 (the Act) was lodged by Mr Colin Henderson (the Applicant) in respect of the termination of his employment by John Holland Pty Ltd (the Respondent).

[2] By the Notice of Employer's Appearance1, the Respondent objected to the Commission hearing the matter on jurisdictional grounds, namely that the Applicant was engaged under a contract of employment for a specified task or a contract of employment for a specified period2. In addition, it was argued that the Applicant was not employed under a Federal Award or Agreement. In response Counsel for the Applicant argued that the Applicant had been terminated on a discriminatory basis on a ground under section 170CK3 and that this therefore provided jurisdiction for the Commission if the matter was barred under S170CE4


[3] Section 170CC(1) of the Act relevantly provides as follows:

[4] Regulation 30B(1)(b) of the Workplace Relations Regulations 1996 (the Regulations) provides:

Whether the contract entered into between the Applicant and Respondent falls into either of the above categories was argued between the parties in written and oral submissions.

[5] The Applicant was engaged as a result of a written Employment Application7. To decide the terms of the contract, I have considered the documentation, submissions and the evidence of the Applicant, and Mr Gordon Hutchings, Occupational Health and Safety/Industrial Relations Manager, for John Holland Pty Ltd.


[6] The Employment Application indicates the position applied for was "Labourer Concreter"8 and the Job Location as "Water Treatment Plant Redcliffe".9 This accords with the Project being undertaken on this site by John Holland Pty Ltd. The Applicant has also confirmed on the Application that:

[7] Mr Gordon Hutchings in evidence stated:

[8] In relation to whether Mr Henderson had been employed on a contract for a specified task, I refer to the authority of Andrew Hewitt v ACTek Custom Engineering Pty Ltd12. Lacy SDP in this case set out:

[9] Applying this reasoning to the present matter on the basis of the materials before me, and the more convincing evidence of Mr Hutchings, I accept that the Applicant's contract of employment was for a specified task of performing concrete finishing work on a specific Project, the Redcliffe Water Treatment Plant Project (the Project).

[10] Lacy SDP further notes

[11] On the evidence, submissions and materials in this matter, I consider in line with the abovementioned authorities "the task to which the employment contract relates is distinct and identifiable in its own right"15 and therefore the Applicant's employment is a contract for a specified task.


[12] The case law indicates that a `specified period of time' is a period of time that is characterised by certainty. The Respondent argues that the term of this contract is fixed for the specific period of time for the duration of the Project.16

[13] Therefore construction of the contract as to whether the project had a specific life is in issue. "Each case must be dealt with on the basis of the terms of the particular contract involved to ascertain whether on its true meaning the contract is or is not one for a specified period of time."17 The Applicant contends his contract was not for the life of the project only, but a full-time employment contract.

[14] The Applicant suggests he completed an additional form after the Employment Application that stated his employment was to be full time.18 The Applicant, in evidence, maintains he was under "the impression his contract was full time"19 The evidence of Mr Hutchings points to the second set of forms being those only relating to the collection of taxation number details and that the Applicant's employment only related to the Project.20 This is further supported by the evidence of the Applicant under cross-examination (as set out below) where he confirms he understood that the contract of employment was limited to the Project:

[15] The Applicant has demonstrated in his evidence (as set out below) an awareness that the period of his contract related to this Project and the process he had to undertake to apply for further work (even though he may have been uncertain as to exactly when the project was to be finalised):-

[16] It was argued on behalf of the Applicant that he was employed on a full-time or continuous basis.22 In the Applicant's Outline of Submissions23 it was contended that the Applicant's contract of employment was analogous to that of Ms Strecker's in Strecker v Metropolitan Cemetery Board 24 where Ms Strecker was employed for successive periods of time which amounted to a period of continuous employment.

[17] In addition on this argument, I was referred to the decisions of Fisher v Edith Cowan University25. I consider the facts at hand to be distinct from the series of engagements that characterised the employment contract in these decisions.

[18] I consider the specific period or actual timing of the Project in the evidence, documentation and submissions to be vague. Accordingly I do not determine that the contract was for a specified period.



[19] Counsel for the Applicant argued that if the Commission considers the Application is jurisdictionally barred via S170CE, the Commissioner nevertheless has jurisdiction via S170CK26. Section 170CK(2)(a) of the Act states:

[20] Counsel on behalf of the Applicant submits:

[21] Counsel submitted:

[22] The evidence of both Mr Hutchings and the Applicant points to a system of separate contracts of engagement related to each finite project. The contract is terminated at the conclusion of each engagement and a new Application is to be submitted for another project and then if required, the employee will be employed on a new contract. Whilst the Applicant presumed he would be employed on the next project, the Dohles Rocks Road Project, it is in contention as to whether he submitted an application form, although he was aware that this was the process required.30

[23] Whilst the issue of determining whether the termination was based on a discriminatory ground is an issue for a court of competent jurisdiction, I note the following only as far as it is relevant to deal with the argument as raised in the current jurisdictional hearing. An examination of whether the Applicant was terminated on discriminatory grounds, must consider whether he was treated differently to other employees, from the same project. The evidence of Mr Hutchings indicates that like the Applicant, not all employees from the Redcliffe Water Treatment Plant Project were employed on the Dohles Rocks Road Project:

[24] Whilst Counsel for the Applicant argued that the Commissions jurisdiction is maintained via S170CK even if the applicant is barred via S170CE, I do not support this view. Counsel argued the evidence in this matter, established a link between the Applicant's alleged termination for absence from the workplace (due to illness or injury) and his redundancy on 21 December 2000. In my view, his redundancy related to the circumstances of the Project being completed rather than any victimisation. In any event given the earlier determination with regard to the contract being one for a specified task and the following comments in relation to lack of Federal Award or Agreement coverage, I conclude that the matter remains jurisdictionally barred.


[25] The uncontested evidence of Mr Gordon Hutchings confirms that the Applicant would be excluded via s.170CB(1)(c) of the Act as he was not employed under a Federal Award or Agreement (as defined in s.170CD(1)). The Applicant was employed as a concrete finisher (classification "CW4") as recorded in the Civil Construction, Operations And Maintenance General Award - State32 as underpins the relevant State Agreement applicable to this Project being the "Queensland Major Contractors Association Multiple Business Agreement for the Pacific Motorway"33.


[26] During the course of the hearing, it emerged that "the last day worked", had been recorded in error on the Application as 20 December 2001. The parties acknowledged that the correct date should be 21 December 200034. The Applicant's witness statement was amended to reflect this. This would make the Application more than 1 year out of time. However, no Extension of Time objection had been lodged by the employer. It is therefore unnecessary for me to determine this issue. However the Applicant indicated the following reasons for his delay in lodging:


[27] I consider the Applicant was engaged under a contract of employment for a specified task.

[28] I also note that the amended termination date of 21 December 2000 could have led to the exclusion of this matter, as it would appear difficult to justify a delay of more than one year on the reasoning for the delay advanced in these proceedings.

[29] The Applicant's case, in any event, also would be jurisdictionally barred as he was not employed under a Federal Award or Agreement.

[30] Accordingly the Commission has no jurisdiction to determine the Application and it will be dismissed. I Order accordingly.




Mr S.J. Hamlyn-Harris of Counsel instructed by Mr G. Doring Solicitor of Cranston McEachern for the Applicant, Mr C.G. Henderson.

Mr D. Deller of John Holland Pty Ltd.

Hearing details:



April 2.

Printed by authority of the Commonwealth Government Printer

<Price code D>

1 Form R21 Notice of Employer's appearance - termination of employment

2 Form R21A Motion to dismiss for want of jurisdiction; Transcript PN 26, 717

3 Workplace Relations Act 1996

4 Workplace Relations Act 1996 s.170CE

5 Workplace Relations Act 1996 s.70CC(1)

6 Workplace Relations Act 1996 reg. 30B(1)(b)

7 Exhibit 8 B

8 Exhibit 8 B

9 Exhibit 8 B

10 Exhibit 8 B

11 Exhibit 2 - Witness Statement of Gordon Hutchings dated 28 February 2002

12 [PR904665]

13 Hewitt v ACTek Custom Engineering Pty Ltd [PR904665] par 18-20

14 Hewitt v ACTek Custom Engineering Pty Ltd [PR904665] par 22, 23

15 Hewitt v ACTek Custom Engineering Pty Ltd [PR904665] par 24

16 Anderson v Umbakumba Community Council 121 ALR 121 @ 125 - 126; cited by Giudice J, Harrison SDP and Lawson C in Qantas Airways Limited [Print Q1482], 9 June 1988 at 7.

17 J. Grycan v Table Tennis Australia Incorporated [Print R7452] p. 6

18 Transcript PN 96

19 Transcript PN 119

20 Transcript PN 273, 442, 508

21 Transcript PN 138-140

22 Transcript PN 86, 87, 722

23 Exhibit 4

24 (1995) 64 IR 109

25 Exhibit 6 [PR960584], Exhibit 7 [PR970098]

26 Exhibit 5

27 Workplace Relations Act 1996

28 Exhibit 4 Applicant's Submissions on Jurisdiction pp. 1-2

29 Transcript PN 715, 716

30 Transcript PN 140

31 Transcript PN 570

32 Exhibit 3

33 Transcript PN 554

34 Transcript PN 392-398

35 Transcript PN 379, 380