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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeals against decisions
PR953151 and PR953160 issued by Commissioner Grainger on 12 November 2004
SPC Ardmona Operations Ltd
(C2005/1308 and C2005/1309)
s.170CE applications for relief in respect of termination of employment
SPC Ardmona Operations Ltd
SPC Ardmona Operations Ltd
Industries not otherwise assigned
VICE PRESIDENT ROSS
DEPUTY PRESIDENT HAMILTON
MELBOURNE, 20 APRIL 2005
Appeal - termination of employment - engagement for a specified period of time and/or for a specified task - jurisdiction - appeal filed out of time - intervention - extension of time granted - leave to appeal refused re: s.170CBA(1)(a) objection - leave to appeal granted - appeal dismissed re: s.170CBA(1)(b) objection.
 These matters involve appeals pursuant to s.45(1)(g) of the Workplace Relations Act 1996 (Cth) (the WR Act) by SPC Ardmona Operations Limited (the Appellant or SPC) against two decisions1 by Commissioner Grainger in which the Commissioner decided that the Commission had jurisdiction to deal with applications filed by Messrs Christopher Esam and Geoff Organ (the Respondents) in relation to the termination of their employment by the Appellant on 23 June 2004.
 In the proceedings at first instance the Appellant moved for the dismissal of the s.170CE(1) applications for relief filed by Messrs Esam and Organ for want of jurisdiction on the following grounds:
 In decisions issued on 12 November 2004 the Commissioner dismissed the Appellant's jurisdictional objections and concluded that the Commission had jurisdiction to deal with the Respondents' s.170CE(1)(a) applications for relief.
Relevant Statutory Provisions
 Section 170CE of the WR Act permits an application for relief on the ground that termination of employment was harsh, unjust and unreasonable. Section 170CBA excludes specified classes of employees from the operation of particular provisions, of which s.170CE is one. Subsections 170CBA(1) and (2) relevantly provide:
"(1) The following kinds of employee are excluded from the operation of Subdivisions B, D, E and F and sections 170CL and 170CM:
(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; ...
Note 1: The expression employee engaged under a contract of employment for a specified period of time (used in paragraph (a)) has been addressed in a number of cases before the Industrial Relations Court of Australia, including, in particular, Cooper v Darwin Rugby League Inc (1994) 57 IR 238, Andersen v Umbakumba Community Council (1994) 126 ALR 121, D'Lima v Board of Management, Princess Margaret Hospital for Children (1995-1996) 64 IR 19 and Fisher v Edith Cowan University (unreported judgment of Madgwick J, 12 November 1996, No. WI 1061 of 1996).
Note 2: An employee who is excluded from the provisions of the Act specified in this subsection may still be eligible to apply for a remedy in relation to the termination of employment under a State law.
Note 3: The definitions in section 170CD apply for the purposes of this section.
(2) Subsection (1) does not apply to an employee engaged under a contract of a kind mentioned in paragraph (1)(a) or (b) if a substantial purpose of the engagement of the employee under a contract of that kind is, or was at the time of the employee's engagement, to avoid the employer's obligations under Subdivision B, D or E or section 170CL or 170CM."
 The Appellant owns and operates two processing plants in regional Victoria (one in Shepparton and one in Mooroopna) where fruits such as peaches, pears, apricots, apples and tomatoes are preserved, processed and put into cans or plastic containers to be sold both domestically and internationally.
 Most of the fruit processing industry is seasonally based and the operation of the Appellant's fruit processing plants in Mooroopna and Shepparton is directly affected by the quantity of fruit grown in any given season. As most of the fruit processed by SPC (including pears, apricots, plums and peaches) only grows at certain times of the year, SPC only needs to operate its production plants at full capacity for approximately two to four months and then at a significantly reduced capacity for a further four to six months.
 Although the timing and length of each fruit season differs according to the weather conditions and other factors, generally the fruit processing season begins around late December. About four or five months later the amount of fruit gathered and delivered to the plant is reduced and SPC reduces its seasonal staff numbers. Towards the end of the season the amount of fruit that needs to be processed is such that some of the processing lines no longer operate. Each year SPC hires approximately 3,000 seasonal employees to process whatever fruit is gathered during the fruit season.
 The Appellant is respondent to the Food Preservers' Award 20002 (the Award) and is a party to the Ardmona Foods Limited Certified Agreement AMWU (Food and Confectionery Employees) 20013 (the Agreement).
 Clause 13.2 of the Award provides that one of the employment categories under which persons may be employed is "seasonal employment":
"13.2 Seasonal employment
13.2.1 On a two day basis during the season and only in respect of seasonal work, in which case, employment shall be terminated by two days notice on either side, given at any time during the day or by the payment or forfeiture, as the case may be, of two days ordinary wages except as provided for by 15.1 and 15.6 of this award.
13.2.2 In addition to all other entitlements seasonal employees shall be entitled to leave in accordance with the provisions of clauses 27 - Annual leave and 28 - Personal leave of the award together with loading.
13.2.3 Terms of transfer of employees
13.2.3(a) At the end of the season, an employer may transfer a seasonal employee to employment as a weekly employee.
13.2.3(b) When the season commences, an employer may transfer a weekly employee with less than one month's continuous service to employment as a seasonal employee to process peas, asparagus, citrus fruits (concentrated juice) or apples.
13.2.3(c) Any transfer made under the provisions of this subclause shall not terminate the employment or break the continuity of employment of the employees so transferred and the employee shall be then given a statement by the employer of the terms of the employee's new class of engagement as provided in 13.5.9 hereof."
 "Seasonal work (or comparable words)" is defined in clause 4.14 to mean:
"work directly associated with or forming part of the preparation and/or the initial continuous processing of seasonally grown items but does not include:
· work in relation to non-seasonally grown items at a plant where seasonally grown items are being prepared or processed; or
· work on products stored by whatever method and not processed in conjunction with the harvesting period, except for apples, pears and beetroot."
 Clause 4.13 of the Award is also relevant. It defines "season" to mean:
"...the period from which a seasonally grown item is made available to a processing plant to the end of such item being available to it and shall include a lead period where required by the employer for the purpose of training of employees for the processing of such seasonally grown items."
 A number of witnesses in the proceedings at first instance gave evidence as to their understanding of the duration of the "season".
 Mr Neil Verhoeven, an AMWU Shop Steward at SPC's Mooroopna plant, gave evidence that there were in effect two seasons4. The first finished in April, early May and covered produce such as tomatoes, peaches, pears and apricots. The second season was from late May to August and covered apples. In combination the period covering seasonal fruit starts in mid-December and goes through until mid to late August5.
 In their evidence Messrs Esam and Organ agreed with Mr Verhoeven's description of the season6.
 Mr Holtham, a shift controller at SPC gave evidence in broadly similar terms. He said that the fruit season is from the beginning of December through to the end of April or early May7, though apples come in after that period8. When it was put to Mr Holtham that the applicants (at first instance) said that they worked from December through to about August, he said:
"Yes. Sometimes we get fruit that we have to reprocess or rework, so we do stuff out of drums and for marketplace so that if the market requires more product then we have to get it back from out of drums, pour it back into the system and make ..."9
 Mr Holtham's evidence supports the following additional propositions:
Mr Esam's Employment
 Mr Esam was first hired by the Appellant as a seasonal employee in 1994. Since then he has completed a number of other periods of temporary seasonal employment.
 In November 2003 Mr Esam was employed by the Appellant to work in the main line area at the Mooroopna plant.
 Before he started working for the Appellant, Mr Esam was given several documents relating to his employment, including:
(a) a document called "General Information - Employees engaged under the Food Preservers' Award" which sets out the terms and conditions of employment for the three categories of temporary employees engaged by the Company: Weekly Temporary Employees, Seasonal Temporary Employees and Casual Temporary Employees.
This document confirms that the notice which must be given and to which a Seasonal Temporary Employee is entitled is two days' notice and that these employees will receive a 20 per cent loading on the all purpose rate.
Under the heading "Seasonal Performance Appraisals" the document states that:
"Performance appraisals are carried out by Leading Hands/Supervisors for all Non-permanent periods of employment at the end of the fruit processing season. The opportunity for re-employment by the Company is dependant upon a person achieving a satisfactory performance rating for the work carried out throughout the season. A range of factors are taken into consideration which include, but are not limited to, attendance and punctuality, work performance and flexibility, observance of Company policies and rules, behaviour and conduct, personal hygiene, etc.;" and
(b) a document with the heading "Statement of Class of Employment in accordance with clause 8(b) of the Food Preservers' Interim Award 1986 and clause 22 of the 2001 Enterprise Agreement" which explains that a Seasonal Temporary Employee is entitled to two days' notice and states that:
"Due to the seasonal nature of the Company's operations, no guarantee is given in relation to the duration of employment."
 On 2 December 2003 Mr Esam signed a form acknowledging that he had received this documentation, that he had read all the information contained in these documents and that he had completed the relevant documents truthfully and correctly. He also signed an acknowledgement13 that he had been engaged for employment on a temporary basis.
 The main line area consists of two `plastics' lines that are the processing lines used to fill plastic cup containers with the processed fruit and syrup (as distinct from cans). On 2 December 2003 Mr Esam was employed as a `packer' on one of the `plastics' lines referred to above. The sheets of plastic container cups in which the fruit is sold come through on a conveyer belt into a machine that breaks these sheets up into individual plastic containers and then packs them into cardboard boxes to be sold. A `packer' operator is responsible for monitoring that this machine is operating properly and that the process is running smoothly. In late March 2004, the `packing' machine was replaced with a slightly different machine that breaks the sheets up into individual plastic containers but then packs them into cardboard trays (with no lids) rather than boxes so that the containers can be inspected before being sold. When this occurred Mr Esam was responsible for monitoring that this new `snapping' machine was operating properly. He became known as a `snapper'. The type of machinery being monitored is different but the role of a `snapper' is essentially the same as the role of a `packer'.
 In June 2004, SPC decided to cease operating one of the `plastics' lines because only one processing line was required to process the amount of fruit which was being delivered to the plant. As a result, on 23 June 2004 eight out of the 22 process workers who were working on the two `plastics' lines ceased working. Mr Esam was one of the employees whose services were no longer required by the Appellant.
 In accordance with the Award and the Agreement Mr Esam was given two days' notice of the fact that he was no longer required to work.
Mr Organ's Employment
 Mr Organ was first hired by the Appellant, to work as a temporary seasonal employee, in 1994. Since then he has completed a number of other periods of temporary seasonal employment with the Appellant.
 In November 2003, Mr Organ was employed by the Appellant to work in the main line area at the Mooroopna plant. He was employed as a process worker to complete the task of processing the fruit that was delivered to the Mooroopna plant for processing by the processing lines in the main line area.
 Before he started working for the Appellant, Mr Organ received the documents described in paragraph 19 above.
 On 2 December 2003 Mr Organ signed a form acknowledging that he had received this documentation, that he had read all the information contained in these documents and that he had completed the relevant documents truthfully and correctly. He also signed an acknowledgement14 that he had been engaged for employment on a temporary basis.
 The Appellant employed Mr Organ to work in the main line area at their Mooroopna fruit processing plant. The main line area consists of two `plastics' lines, which are the processing lines, used to fill plastic cup containers with the processed fruit and syrup (as distinct from cans). SPC employed eleven process workers to work on one of the `plastics' lines and eleven process workers to work on the other. SPC also employed a Team Leader to supervise these `plastics' lines. Twenty of these process workers were temporary seasonal employees who were employed for the task of operating these two `plastics' lines to process all of the fruit delivered to SPC while there was enough fruit to operate both processing lines.
 During his employment with the Appellant, Mr Organ undertook the duties of batch making. A batch maker makes up juice for the syrup that covers the fruit in the plastic containers in which the fruit is sold. The batch maker receives the fruit juice as a concentrate and is then required to add water to the concentrate and bring it to a certain sugar content and then place the juice into a tank. The tank is part of a processing line which includes an automatic heat exchanger which converts the juice into a syrup and then fills the plastic containers with this syrup on top of the processed fruit.
 During his employment with the Appellant from November 2003 until 23 June 2004 Mr Organ was primarily performing the job of batch making15. For a period of less than four weeks he worked on the ERCA machine on the plastics line16.
 Towards the second half of the fruit processing season, from about April 2004, the amount of seasonally grown fruit (such as peaches and pears) delivered to the Mooroopna plant significantly reduced and there was a reduction in fruit processing.
 In June 2004, the Appellant decided to stop operating the second `plastics' line because only one processing line was required to process the amount of fruit that was being delivered to the plant. As a result, on 23 June 2003 eight out of the 22 process workers who were working on the two `plastics' lines ceased working for SPC. Mr Organ was one of the employees whose services were no longer required by the Appellant.
 The process of selecting which employees would work on the single operating `plastics' line after June 2004 involved an assessment of the employees' performance during the season. In deciding who were the best 14 process workers a range of factors, including attendance and punctuality, work performance and flexibility, and observance of SPC's policies and rules were considered.
 Mr Organ was given two days' notice of the fact that he was no longer required to work.
Decision at First Instance
 The Commissioner rejected the Appellant's motion to dismiss the applications and concluded that the Commission had the requisite jurisdiction to hear and determine the s.170CE(1) applications for relief. The Commissioner's reasons were broadly similar in each of the matters before him.
 The gravamen of the Commissioner's reasons for rejecting the s.170CBA(1)(a) objection appear in the following passage from his decision in respect of Mr Esam:
" In the present case the purported contract of employment (Exhibit R2 Attachment HH-1) specified that Mr Esam was "engaged for employment on a temporary basis" on terms and conditions specified in the Award and subject to the termination of his employment "by two day's notice by either the Company or the employee at any time". Nowhere in this purported contract of employment nor in the Award or the Agreement is there any adequate definition of the "season" which would allow it to be found by this Commission to be "a specified period of time" for the purposes of s.170CBA(1)(a) of the Act. The state of the evidence indicates that there is no commonly accepted definition of the term "season" so as to define or confine the period of Mr Esam's employment. There is no certainty about it, as Von Doussa J indicated is required in Anderson (at 106). Indeed it appears fraught with ambiguity. However, if that was not sufficient to preclude the application of s.170CBA(1)(a) to Mr Esam's purported contract of employment with SPC, the inclusion of a right to terminate the contract on two days notice by either party and the inclusion of such a right at cl 13.2.1 of the Award all act to preclude this contract from being found to be a contract of employment for a specified period of time (See Von Doussa J in Anderson at 106 - 107 and Marshall J in D'Lima at 25).
 Accordingly I find that the provisions of s.170CBA(1)(a) of the Act cannot apply to preclude the Commission from having jurisdiction in this matter."17
 A similar passage appears in the decision in respect of Mr Organ18.
 The Commissioner's reasons for rejecting the s.170CBA(1)(b) objection in respect of Mr Esam's application are as follows:
" In the present case the purported contract of employment refers only to an area of work in which Mr Esam is to be engaged, the area of "mainline". Even after the end of the first of the two "seasons" in 2004, there were still at least twenty-two people employed in the mainline area. While the "mainline" area dealt with the processing and packing into plastic containers of seasonally grown fruit, it is far from clear or certain or unambiguous just what Mr Esam's duties were to be in the "mainline" area. He would, it appears, perform such duties as his supervisor asked him to perform from time to time, and so in March 2004 ceased to be a "packer" and became a "snapper", in which role he was placed in charge of monitoring packaging of the seasonal fruits into plastic containers. To refer to an employee's employment in the contract of employment simply as being in a geographical or physical area of the place of work does not, I find, of itself meet Von Doussa J's test of "a task the scope and parameters of which are stated definitely" nor of SDP Lacy that to come within the definition of "specified task" the contract should sufficiently specify "a project or job which is distinct or identifiable in its own right ... [and] should be self-contained". The Full Bench in Qantas Airways v Fetz referred to an "insufficient particularity" and that is what I find to be the case in relation to Mr Esam's contract of employment. He was, under that purported contract, to work in the "mainline" area rather then the "Warehouse" or "Plums". He was told where to go to do his work. When he went to that place, "mainline", he would then be told by his supervisor what duties he would be responsible for performing. This is not sufficiently specific, clear or unambiguous to come within the scope of s.170CBA(1)(b) of the Act.
 Accordingly I find that the provisions of s.170CBA(1)(b) of the Act cannot apply to preclude the Commission from having jurisdiction in this matter."19
 A similar passage appears in the decision in respect of Mr Organ20.
 The determination of the issue in the proceedings at first instance involved a finding of jurisdictional fact; it is not a matter that involves the exercise of a discretion. Accordingly on appeal the Commission is concerned with the correctness of the conclusion reached in the decision at first instance, not whether that conclusion was reasonably open21.
 The decisions subject to appeal were handed down on 12 November 2004. Rule 11(2)(a) provides than an appeal must be instituted "before the end of 21 days after the date of the ... decision ... appealed against". Hence the appeals in these matters ought to have been instituted by 3 December 2004. In fact the appeals were filed on 20 January 2005, just under seven weeks outside of the time prescribed in Rule 11(2)(a).
 Rule 11(2)(c) confers power on a Full Bench of the Commission to extend the time within which an appeal is to be lodged. In Dundovich v P&O Ports (Dundovich)22 the Commission considered that the following matters were relevant to the exercise of the Commission's discretion under Rule 11(2)(c):
 In Dundovich the Commission also adopted the following observation from an earlier Full Bench decision in Stevenson-Helmer v Epworth Hospital:
"In our view the time limits in relation to the institution of appeals must be treated seriously and should only be extended where there are good reasons for doing so."23
 It is common ground that the above principles are apposite to the matters before us.
 In the present matters the Appellant concedes that it does not have a satisfactory explanation for the delay, but submits that the other matters relevant to the exercise of the Commission's discretion under Rule 11(2)(c) outweigh the absence of such an explanation. In particular the Appellant contends that:
 In relation to the last matter the Appellant submits that on the face of the decisions subject to appeal the Commissioner does not appear to have taken into account SPC's reply to the Respondents' closing submissions and the cases referred to in that submission.
 In sum the Appellant submits that the circumstances of this case are out of the ordinary and warrant the exercise of the Commission's discretion so that the substance of the appeal can be properly considered taking into account all of the submissions of the Appellant. If the time to institute an appeal in each matter is not extended it is argued that an injustice would accrue to the Appellant.
 The Respondents oppose the application to extend time for the lodgement of the appeals.
 In respect of the matters identified in Dundovich the Respondents note that the Appellant has made no attempt to proffer any reason for the delay. Accordingly, it is argued, it may be assumed that there is no good reason for the delay and the Commission is left to speculate on whether the delay was occasioned by oversight, tardiness or disregard for the Commission's rules.
 As for the length of the delay, the Respondents contend that it is substantial.
 In relation to the nature of the appeal and the likelihood of success on appeal, the Respondents submit that the fact that the appeal raises a jurisdictional issue is not enough to secure an extension of the time for filing the appeal. Reliance is placed on the decision of the Full Bench in Re National Rail Enterprise Agreement25 in this regard. The Respondents also contend that the grounds advanced in support of the appeal are not particularly strong and this further erodes the Appellants' case for extension.
 The Respondents do not point to any particular development which took place in the time from 21 days after the decisions under appeal until the actual date of lodgement (i.e. 12 November 2004 to 20 January 2005), but do assert that they will be prejudiced if the time for lodgement is extended. In this regard it is submitted that Messrs Esam and Organ face significant and ongoing delays in having their applications dealt with.
 In relation to the matters identified in Dundovich we find that:
 We have also concluded that the grounds of appeal - at least in respect of the s.170CBA(1)(b) point - are arguable.
 We have decided that the interest of justice would be best met by the exercise of our discretion to extend the time for the citing of the appeals. We grant the applications to extend time pursuant to Rule 11(2)(c).
Submissions on appeal
 Before turning to the Appellant's submissions it is convenient to deal with the applications by the National Farmers' Federation (the NFF) and the Australian Industry Group (the AiGroup) for leave to intervene in the appeal proceedings.
 In support of its intervention application the NFF submits that the determination of the matters before the Commission will have consequences for the employment of labour in the agricultural industry, as a significant proportion of the labour in that industry is employed on a seasonal basis. The NFF acknowledges that the strength of the precedent arising from these appeals on other workplaces will be dependent on the facts arising in a given situation. However, the issue of whether the term "season" is identifiable as a specified period of time, or a task to be completed within a season is identifiable as a specified task, will have wide implications.
 If granted leave to intervene the NFF would support the Appellant's submissions and advance some additional arguments in relation to the parameters of what is meant by the term "season"26.
 The AiGroup advances four points in support of its application for leave to intervene:
 If granted leave to intervene the AiGroup would support the Appellant's submissions and advance some additional arguments in relation to the "specified task" issue.27
 We are persuaded that the NFF and AiGroup have a sufficient interest in the proceedings to warrant the exercise of our discretion and we have decided to grant them leave to intervene. While we do not propose to deal with their submissions in detail, we have had regard to them in our consideration of the appeal. We now turn to the Appellant's submissions.
 The Appellant contends that leave to appeal should be granted in both appeals on the basis that the grounds of appeal are arguable and the issues raised are of sufficient importance that leave should be granted in the public interest. Three additional matters are advanced in support of leave being granted:
 The Appellant's submissions in respect of both appeals are broadly similar. In relation to the Commissioner's decision with respect to the s.170CBA(1)(a) objection the Appellant advances two arguments in support of its contention that the Commissioner erred:
 In relation to the notice issue the Appellant submits that the requirement to provide two days' notice of the termination to seasonal workers was not a term of their employment contract per se, but rather an obligation imposed on SPC by clause 13 of the Award. It is said that on this basis the facts in these matters are distinguishable from the circumstances in Cooper v Darwin Rugby League29 (Cooper). The Appellant also submits that any right to terminate for `cause' ought not be fatal to a contract being for a fixed period. Reliance is placed on observation by von Doussa J in Anderson in support of this proposition. For reasons which will become apparent it is unnecessary for us to deal further with the appellants submissions on the point in relation to s.170CBA(1)(a) appeals.
 The Appellant also contends that the Commissioner erred in his consideration of the term "season". It is argued that although the Commissioner may have viewed the witness evidence in respect of this issue as unsatisfactory the facts otherwise support a conclusion that the period was specified with sufficient certainty. The specified "period" for which the Respondent's were employed was the season. It is submitted30 that the evidence consistent with that engagement is as follows:
(a) The terms of the Award defining the type of engagement;
(b) The recruitment of the Respondents pursuant to the terms of clause 12 of the Agreement, which establishes a specific recruitment process for seasonal employees, including performance appraisals and performance ratings.
(c) The signed acknowledgments by each of the Respondents about their temporary seasonal employment31;
(d) The evidence of each Respondent before the Commission that they further understood that they were engaged as a seasonal employee32;
(e) The terms and conditions of employment that were applied were consistent with the requirements of the Award and Agreement. For example, two days notice of the termination of employment (clause 13.2.1);33
(f) Further, consistent with the Award and the Agreement, the Respondents (along with more than 3800 other seasonal employees34) were paid a 20% loading, in lieu of annual leave, sick leave and public holiday entitlements and were not entitled to, nor paid, a severance/redundancy payment.
(g) The termination of employment for the purposes of Centrelink documentation is consistent with its specified period i.e the season - the pro-forma `separation certificates' noted `shortage of work'.35
 The Appellant contends that clause 4.13 of the Award sufficiently defines the season as the fixed period of employment. It is submitted that such an interpretation is consistent with the application of the Award, the Agreement and the engagement of employees. This industrial setting is said to support the characterisation of the contract as being for a specified term and the period need not be set in concrete. In relation to the witness evidence the Appellant argues that the failure of individuals to articulate a common understanding of the season ought not undermine the definition of that fixed period applicable to more than 3000 seasonal employees. The engagement of Messrs Esam and Organ must be taken in the context of the industrial setting in which SPC operates. The Award and the Agreement make provision for the engagement of "seasonal" employees for a specified "period". The Appellant argues that seasonal employees engaged as such in accordance with the relevant industrial instruments ought to come within the exclusion in s.170CBA(1)(a).
 The Appellant also relies on the decision of Millane JR in Hatten v Crapper and Crapper36 (Hatten's case) in which it was said:
"In the case at hand the applicant agreed that he was employed on a seasonal basis; that is to say, for the crayfishing season commencing mid November to the end of August the following year with an agreement to do maintenance work on the boat or cray pots for a further two to three weeks at the end of the season;... In my view by its terms this was not a contract for an indeterminate period because the timing of the end of the fishing season and the maintenance period was determined even if a precise date is not nominated."37
 We are not persuaded by the Appellant's submissions in relation to the s.170CBA(1)(a) objection. It is common ground that the expression "for a specified period of time" in s.170CBA(1)(a) means a period of employment that has certainty as to its commencement and time of completion. As von Doussa J. observed in Anderson v Umbakumba Community Council:
"A contract of employment to run throughout a nominated number of days, weeks, or years would be a contract of employment for a specified period of time. If the terms of the contract of employment, instead of identifying in this manner the period of time during which it is to run, 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 be for an indeterminate period of time."38
 Applying these observations to the present matter leads us to conclude that the contracts of employment in question were not for "a specified period of time" within the meaning of s.170CBA(1)(a). Rather the contracts in question run until some future event, namely the end of the `season', the timing of which was uncertain when the contracts were made.
 The definitions of `season' and `seasonal work' in the Award do not assist the Appellant. As we have already noted clause 4.13 of the Award defines the end of the `season' as the time when a seasonally grown item is no longer made available to a processing plant. It seems to us that the timing of the future event specified is uncertain when the contracts are made and hence the contracts of employment in question do not fall within the terms of the exclusion. Our conclusion in this regard is supported by the evidence in the proceedings at first instance as to the duration of the `season'39.
 Nor do we think that the judgement of Millane JR in Hatten's case assists. The circumstances in that matter are distinguishable from the matters before us. In that case, unlike the matters before us, there was a common understanding between the parties as to the duration of the season in question.
 We note that in their submissions the Respondents canvass a number of other matters in relation to the notice issue, including the incorporation of the award right to dismiss on notice into the relevant contracts of employment.40
 However, given the conclusion we have reached regarding the lack of certainty in the duration of the contracts of employment in question, it is unnecessary for us to consider the impact of clause 13.2.1 of the Award, which allows the employment of persons employed on seasonal work to be terminated on two days' notice.
 We are not persuaded that the Appellant has established an arguable case of error in the Commissioner's decisions in respect of the s.170CBA(1)(a) objections. Indeed we agree with the Commissioner's decisions. Nor are there any other considerations that warrant the granting of leave to appeal in respect of this issue.
 We refuse leave to appeal, in both appeals, in relation to the s.170CBA(1)(a) issue.
 In respect of the s.170CBA(1)(b) issue the Appellant contends that the "specified task" for which Messrs Esam and Organ were engaged was to process the fruit delivered to the Mooroopna plant during the 2004 season until there was insufficient fruit to operate both of the `plastics' processing lines in the main line area. Reliance is placed on the evidence of Messrs Esam and Organ in this regard. At paragraphs 813 to 816 of the transcript the following exchange takes place between Mr Wheelahan, counsel for SPC, and Mr Esam:
Mr Wheelahan: And when you were employed, not only were you employed for the season but you knew that your specific task was to operate on the plastics line and main line. That was the task for which you were employed, correct?
Mr Esam: Yes, yes.
Mr Wheelahan: That was your task?
Mr Esam: Yes.
Mr Wheelanhan: And I am putting to you that you were employed until such time as those plastic lines were not operating?
Mr Esam: Yes.
Mr Wheelahan: That was your task?
Mr Esam: My understanding, yes."
 Similarly at paragraph 923 of the transcript there is an exchange between Mr Wheelahan and Mr Organ:
Mr Wheelahan: I am asking what - the question is the task you are employed to do according to you was in the main line you were the processing fruit delivered to the Mooroopna plant during the 2004 until there was insufficient fruit to operate each of the plastics lines in main line, that was the task you were employed to do?
Mr Organ: Yes."
 The Appellant contends that the evidence of Messrs Esam and Organ about the specifics of their tasks is consistent with them being employed under a contract for a specified task. Conceptually the project or job that is distinct and identifiable in the 2004 fruit season is the processing of the fruit that is delivered to the `plastics' processing lines in the main line area. It is argued that it is the very reference to the main line processing lines that makes the work distinguishable.
 In relation to s.170CBA(1)(b) the Respondents submit that by having Messrs Esam and Organ employed to work in the main line41 the engagement appears to be characterised by reference to the Appellant's undertaking and operations. In this context the Respondents refer to the judgment of Wilcox J in Drury v BHP Refractories Pty Ltd:
"Counsel argues that the Rooty Hill job was a `specified task' for the purposes of par (b). He is driven by the logic of that argument to say that par (b) applies whenever an employer employs a person to work on a particular project, whatever its size and duration. I do not think this is correct. The words `for a specified task' qualify the words `contract of employment'. The contract of employment must be for a specified task; it must be a contract under which the employee is to carry out a specified task. The words `for a specified task' have nothing to do with the employer's task, or project. This seems clear as a matter of grammar and it makes sense in policy terms. One can understand a view that the protections provided by Div 3 of Pt VIA should not be available to people who undertake only a specified task. Especially after the task is completed, it would be anomalous to restrict the employer's right to terminate the contract of employment. Bearing in mind that many projects undertaken by employers continue for many years, while employees come and go, it would be equally anomalous to exclude relief under Pt VIA simply because the employee was engaged in connection with a particular project."42
 It is argued that the evidence supports a finding that there are various jobs and tasks performed on the main line and that employees may be shifted from one job to another according to the availability of produce.43 It is submitted that such an arrangement does not accord with the following passage from Lacy SDP's decision in Hewitt v ACTek Custom Engineering Pty Ltd:
"I agree that the phrase `a specified task' should be interpreted narrowly so as to cover only situations where an employee has been engaged under a contract to perform a project or job which is distinct or identifiable in its own right. The task to which the original employment contract relates should be self-contained and not leave open the possibility of the employee performing any work outside the realm of the specific task for which the employee is being employed. That is not to say that an employee engaged under a contract for a specified task could not agree, during the performance of the contract, to undertake some other work for the employer that was peripheral to the original contract. In those circumstances, a question might arise as to whether there has been a variation of the terms of the original contract."44
 The Respondents' representative, Mr Terzic, also relied on the fact that the Respondents' had different tasks to perform during the season. Mr Organ was employed in both batching work and on the ERCA machine whereas Mr Esam went from "packing" to "snapping". The changes in the tasks performed were said to be relevant considerations in assessing whether the Respondents had been engaged in a specified task within the meaning of s.170CBA(1)(b). Mr Terzic conceded, properly in our view, that if Mr Organ had been engaged solely on the basis that he would be performing batching work on the main line so long as there was sufficient fruit to operate the line upon which he was working, then he would have fallen within the ambit of the exclusion45.
 Mr Terzic also submitted that SPC's ability to terminate the Respondents' employment upon two days' notice (as provided for in clause 13.2.1 of the Award) precluded the contracts from being contracts for a specified task46.
 In Qantas v Fetz47 the Full Bench had regard to the dictionary definitions of "task", and concluded that an apprenticeship had insufficient particularity to be employment for a specified task, and that it would be straining language to describe it as such. It said that "a specified task" would normally apply to an identifiable project or job. We agree with those comments.
 Further, the specified task in question must be the task for which the employee has been employed. It is not enough that an employee was engaged by an employer undertaking a particular project48. Of course the employee's contract may make a direct link with the employer's project or season, and the AMWU quite properly conceded that this might bring the contract within the exclusion49.
 On the material before us (and subject to what we shall say about the `notice' issue) we are satisfied that Messrs Organ and Esam were engaged under a contract for a specified task. The task in question was to process the fruit delivered to the Mooroopna plant during the 2004 season until there was insufficient fruit to operate both of the `plastics' processing lines in the main line area. We are satisfied that this task is sufficiently distinct and identifiable to bring the Respondents within the exclusion in s.170CBA(1)(b).
 In our view the task in question is analogous to that in D'Orenzio v Telstra in which von Doussa J held that a contract of employment to process applications for "win back" from Service Provider customers to remove the backlog of such applications, over a period that was anticipated to be short, and until the introduction of an automated process, was a specified task50. His Honour's finding in this regard was affirmed on appeal51. Further, the fact that there was a change in the specific duties performed by the applicant part way through the period, from data processing to dealing with telephone enquiries, did not alter the character of the employment; it was still for a "specified task". Both the data processing and the telephone enquiries were "part and parcel" of the task of manually processing the "win back" applications52.
 Contrary to Mr Terzic's submission we do not think that the different duties performed by the Respondents results in a conclusion that they were not employed on contracts for a specified task. Two points may be made in this regard. The first is that it is apparent from the evidence that while Mr Esam initially worked as a "packer" and then as a "snapper", there is in fact no significant difference between the tasks performed.
 In his evidence, Mr Hotham deals with the change in the duties performed by Mr Esam in these terms:
"On 2 December 2003, Mr Esam was employed as a `packer' on one of the `plastics' lines referred to above. The sheets of plastic container cups in which the fruit is sold come through on the conveyer belt into a machine that breaks these sheets up into individual plastic containers and then packs them into a cardboard boxes to be sold. A `packer' operator is responsible for monitoring that this machine is operating properly and that the process is running smoothly. In late March 2004, the `packing' machine was replaced with a slightly different machine which breaks the sheets up into individual plastic containers but then packs them into cardboard trays (with no lids) rather than boxes so that the containers can be inspected before being sold. When this occurred Mr Esam was responsible for monitoring that this new `shipping' machine was operating properly. He became known as a `snapper'. The role of a `snapper' is almost identical to the role of a `packer' and only the type of machine being monitored is different."53
 The second point to note is that even if there is a change in the specific duties to be performed under a contract for a specified task, s.170CBA(1)(b) may still apply if the duties concerned are peripheral and "part and parcel" of the specified task for which the employee was employed54.
 In the context of this case we are satisfied that the work performed by Mr Esam and Mr Organ's work on the ERCA machine was "part and parcel" of the task of working on the `plastics' line.
 We now turn to consider whether SPC's ability to terminate the Respondents' employment upon two days' notice meant that the contracts were not for a "specified task".
 In relation to the first point the Appellant submits that the requirement to provide two days notice to seasonal workers of the termination was not a term of their employment contract per se, but rather an obligation imposed on SPC by clause 13 of the Award. It is said that on this basis the facts in these matters are distinguishable from the circumstances in Cooper. The Appellant also submits that any right to terminate for `cause' ought not be fatal to a contract being for a fixed period. Reliance is placed on observation by von Doussa J in Anderson in support of this proposition.
 Further, the Appellant contends that the judgment of Marshall J in D'Lima v Board of Management, Princess Margaret Hospital for Children55 (D'Lima) is not binding authority for the proposition that an Award provision providing for termination on notice precludes a finding that an employee was engaged for a specified period of time within the meaning of s.170CBA(1)(b). It is said that his Honour's observations to this effect in D'Lima were obiter. Further the Appellant relies on the following passage from the judgment of Madgewick J in Dadey v Edith Cowan University (Dadey):
"(3) That a contract which does specify, and primarily looks to, a term for the duration of its performance might in some circumstances, at the instance of one party, be brought to a premature termination, does not necessarily require the conclusion that the contract was not one `for a specified term'. As Dr Jessup QC for the respondent put it, the period does not need to be `set in concrete'. As a matter of ordinary language one would, quite comfortably, call the contract here, in its industrial setting, a `contract for a specified term'. No absurdity or injustice results from such an interpretation. Nor is there any conflict between this reasoning and that of von Doussa J in Andersen v Umbakumba Community Council (1994) 56 IR 102...
(4) The better view probably is that absent express contractual incorporation of its terms, the award has the effect of rendering inoperative certain terms of the contract as against the employee, but the terms of the award do not themselves become terms of the contract (Byrne v Australian Airlines Ltd (1995) 61 IR 32), nor, in my opinion, do the terms made inoperative cease to be terms of the contract. The award provisions would normally therefore have no relevant impact on the contract for the purpose of its characterisation as within or without reg 30B."56
 The reasoning of Madgwick J was followed by a Full Bench of this Commission in Ledington v University of Sunshine Coast57 (Ledington).
 In Ledington the Full Bench adopted with approval the decision of Ogilvie v Warlukurlangu Artists Aboriginal Association Incorporated58, in which Hampton DP outlined the general principles to be used when determining whether a contract is for a specified period of time. The following principles were stated in that case:
 The Respondents contend that the Commissioner did not err in the manner suggested by the Appellant and that leave to appeal should be refused in respect of the s.170CBA(1)(b) matters. The Respondents submit that the extracts from Dadey relied on by the Appellant to support the notion of a distinction between award and contract based notice are misleading. It is said that the passages relied on are selective, taken out of context and are also obiter. In this regard the Respondents refer to the following passage from Dadey:
"Nor is there any conflict between this reasoning and that of von Doussa J in Andersen v Umbakumba Community Council (1994) 56 IR 102 - in that case, once the contract was properly understood, it simply could not be characterised as a contract `for' a specified period: it was merely a contract which would, in no circumstance, run beyond the specified period. It was contemplated in that case that either party might, before the expiration of the period specified, terminate it on short notice for any reason whatsoever. Hence, absent something unforeseen, the employer was bound to continue the employment for the specified period. In my view, that is enough. Just as in the case of an award right to resign, it would be a strange conclusion that those who contractually can resign should get the Convention's, and the Act's, protection, but those who cannot resign should not get it."59
 The Respondents also canvass a number of other matters in relation to the notice issue, including the incorporation of the award right to dismiss on notice into the relevant contracts of employment.60
 Clause 13.2.1 of the Award provides:
" On a two day basis during the season and only in respect of seasonal work, in which case, employment shall be terminated by two days notice on either side, given at any time during the day or by the payment or forfeiture, as the case may be, of two days ordinary wages except as provided for by 15.1 and 15.6 of this award."
 As we have noted SPC contends that the right to terminate the employment of a seasonal worker on two days notice (or payment in lieu) is conferred by the Award and is not a term of the relevant contracts of employment. On this basis it is submitted that SPC's ability to terminate the employment of Messrs Organ and Esam upon giving requisite notice is irrelevant to the determination of whether they were "engaged under a contract of employment for a specified task."
 In the course of oral argument Mr Wheelahan, counsel for the Appellant, also submitted that clause 13.2.1 of the Award was not "in the style of a broad and unconditional right of termination" and as such it should not be fatal to the characteristics of the contract contended for the by the Appellant. 61
 Dealing with the second point first, we do not agree with the Appellants' characterisation of the right conferred in clause 13.2.1. It seems to us that the Award does confer a broad and unconditional right to terminate, subject only to the giving of two days notice or payment in lieu.
 In relation to the first point we are not persuaded that the distinction to which the Appellant refers applies in the circumstances of this case. We find that a right to terminate their employment upon the giving of two days notice (or pay in lieu) was expressly incorporated into the employment contracts of Messrs Esam and Organ. Before starting work Messrs Esam and Organ were given several documents relating to their employment with SPC. One of the documents provided is headed "General Information".62 Under the heading "Conditions of Employment" this document says:
" Terms and conditions of employment are as provided by the relevant Award."
 Under the heading "Termination of Employment" the document says, among other things:
" Seasonal Temporary Employees
Employment shall be terminated by Two Days' notice by either the Company or the employee at any time during the week or by payment or forfeiture, as the case may be, or Two Days ordinary wages."
 One of the other documents provided to Messrs Esam and Organ was headed "Instructions for Completion of Paperwork".63 Under the heading "Contract of Employment" this document says:
" Please read this information carefully. It explains the basis of your employment and the amount of notice you are entitled to, or you must give when you are leaving the Company."
 Messrs Esam and Organ both signed a statement acknowledging that they had received the documents referred to above.
 We find that it was an express term of the relevant contracts that the employment of Messrs Esam and Organ could be terminated by SPC upon giving two days notice or payment in lieu.
 When a contract of employment provides for a broad or unconditional right of termination during its term the period of the contract is indeterminate and thus not for a specific period of time (see Ledington). We were not taken to any authorities that have dealt with the impact of an unconditional right of termination on a contract for a specified task, but it seems to us that the same considerations apply. An unconditional right to terminate changes the nature of the contract - from a contract for a specified task within the meaning of s.170CBA(i)(b), to a contract for an indeterminate time.
 The contracts in question cannot be said to be for a "specified task" in circumstances where they may be terminated by the employer on a whim, merely upon the giving of two days notice, or payment in lieu, prior to the completion of the task in question.
 The existence of termination with notice provisions in awards is consistent with the view we have reached. The standard redundancy provisions for federal awards expressly exempt employees engaged for a "specified task" from the notice of termination provisions. Such award usage may suggest that a right to terminate on notice is inconsistent with "specified task" employment.
 We wish to make it clear that it is the broad and effectively unconditional, nature of the right to terminate the contracts in this case which robs these contracts of having the characteristic of being for a "specified task". Consistent with the approach taken in Ledington a contract that provides for termination on grounds that are analogous to the common law right to terminate a contract for misconduct or other breach, may still be a contract for a fixed term.
 It follows that Messrs Esam and Organ were not engaged under contracts of employment for a specified task within the meaning of s.170CBA(i)(b).
 We have decided to grant leave to appeal, in both appeals, in relation to the s.170CBA(i)(b) issue. However we are not persuaded that the Commissioner erred in his conclusion in respect of this issue and accordingly we dismiss the appeals.
P. Wheelahan of Counsel with D. Wintermantel for SPC Ardmona Operations Pty Ltd.
B. Terzic on behalf of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union for Messrs Esam and Organ.
D. Wawn for the National Farmers' Federation (intervening).
M. Mead for the Australian Industry Group (intervening).
Printed by authority of the Commonwealth Government Printer
<Price code C>
1 PR953151 and PR953160.
3 AG812861 PR912957.
4 Mr Verhoeven said, at PN 695 of the transcript:
"... the season is mid December to late April, maybe early May. In that period of time you have got fruits such as your pears, your peaches, your apricots and your tomato product being processed in that time and then you have got another season coming up around about mid to late May, maybe early June, till about August which is your apple period."
5 Transcript PN727-733.
6 Transcript at PN808-811 and PN909-915.
7 Transcript at PN125 and 374.
8 Transcript at PN384-391.
9 Transcript at PN127.
10 Transcript at PN164.
11 Transcript at PN321.
12 Transcript at PN357.
13 Attachment HH-3 to Exhibit R2 of the proceedings below.
14 Attachment HH-2 to Exhibit R2 of the proceedings below.
15 See Respondent's written submissions at paragraph 38.
16 Mr Organ says he only performed this task for one week: transcript at PN877-879; whereas Mr Holtham says Mr Organ worked on the ERCA machine for three to four weeks: transcript PN48-49, 55-57 and 340
18 See paragraphs 29-30 of PR953160.
20 See paragraphs 34-35 of PR953160.
21 Sammartino v Foggo (1999) 93 IR 52; Pawel v AIRC (1999) 97 IR 392; Mann v Ross (1999) 88 FCR 274; Miller v University of New South Wales (2001) 108 FCR 192; Damevski v Giudice (2003) 202 ALR 494; Cetin v Ripon Pty Ltd t/as Parkview Hotel (2003) 127 IR 205.
22 PR923358, 8 October 2002 per Ross VP, Hamilton DP and Eames C.
23 Print T2277, 19 October 2000 per Ross VP, Acton SDP and Simmonds C; cited in Dundovich at para 47.
24 See the affidavit of Ms Dana Wintermantel.
25 Print L0238.
26 See the NFF written submissions at paragraphs 16-35.
27 See the AiGroup written submissions at paragraphs 9-27.
28 (1995) 56 IR 102.
29 (1994) 57 IR 238.
30 See Exhibit A4 at paragraph 18
31 See attachments HH-2 and HH-3 to Mr Holtham's statement, Exhibit R2.
32 Transcript at PN790 - 800 for Mr Esam; PN 899 - 906 for Mr Organ.
33 Transcript PN 624, 625 and PN645 Mr Potts for the Applicants; Transcript PN 806, 807 Mr Esam; Transcript PN 889 - 891 Mr Organ.
34 See transcript PN521.
35 Transcript PN191; exhibit R3.
36 IRCA 17 December 1996, unreported.
37 Ibid at p. 6.
38 (1994) 126 ALR 121 at 126.
39 See paragraphs 12-16 of this decision.
40 See Respondents' written submissions at paragraphs 23-27.
41 See Exhibit R2, Mr Holtham's witness statement, at paragraph 15 and 22.
42 (1995) 62 IR 467 at 471-472.
43 See Exhibit R2, Mr Holtham's witness statement, at paragraph 14.
44 PR904665, 25 May 2001 at paragraph 24.
45 Transcript at PN189-190.
46 Transcript at PN193-206.
47 (1998) 84 IR 52 at 66.
48 Drury v. BHP Refractories (1995) 62 IR 467 at 472 per Wilcox CJ, IRCA.
49 Transcript PN207-212.
50 (1997) 78 IR 468 at page 479.
51 (1998) 82 IR 52.
52 (1997) 78 IR 468 at page 480.
53 See Exhibit A2 at paragraph 26. Also see Mr Potls' evidence, transcript at PN592-594.
54 Hewitt op cit at paragraph 29 and D'Orienzio op cit at paragraph 480.
55 (1995) 64 IR 19.
56 (1996) 70 IR 295 at 296.
57 (2003) 127 IR 152.
58 PR921908 at 13.
59 (1996) 70 IR 295 at 296-297.
60 See Respondents' written submissions at paragraphs 23-27.
61 Transcript, 21 March 2005 at paragraphs 122 - 127.
62 See Attachment HH1 to Exhibit R2.
63 See Attachment HH1 to Exhibit R2.