PR931023 PR931023 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170CE application for relief in respect of termination of employment Edward C Kendall and Manpower Services (Australia) Pty Ltd (U2003/1363) COMMISSIONER EAMES MELBOURNE, 5 MAY 2003 Termination of employment. DECISION [1] This decision (now edited) was given in transcript in Darwin on 30 April 2003. [2] This is an application made pursuant to section 170CE of the Workplace Relations Act 1996 by Mr Edward Kendall in relation to him seeking relief following his termination or alleged termination of employment by Manpower Services (Australia) Pty Ltd. The respondent in these proceedings, Manpower, has objected to the matter going forward on the basis that Mr Kendall was employed as a casual labour hire employee and that once a particular assignment ended, the applicant has not accepted any further work with any other clients of the respondent. [3] In evidence given to the Commission by Mr Kendall, he has acknowledged completing the form which was the application for work provided by Manpower, and having ticked appropriate boxes which indicated that he applied to work as a temporary employee, and agreed to be employed on a casual basis, depending on assignments offered and his availability. He also admitted ticking the box indicating that he understood his hourly rate of pay would include payment in lieu of annual leave and sick leave. [4] In a separate exhibit tendered to the Commission, exhibit H2, which were the payroll details developed during the term of Mr Kendall's employment, I am satisfied that the record indicates a consistent gross weekly rate of pay for the large part of the period of employment, which was subject only to variation when public holidays occurred, or other periods of absence from work for which the applicant was not paid in accordance with his agreement. I am satisfied that the period of employment of Mr Kendall began on 26 March 2002 and concluded on 11 March 2003. A period of some two weeks prior to a period of 12 months. [5] The regulations that apply in relation to casual employment are found at regulation 30B(1)(d) contained within the Act. Section 170CC of the Act provides that the regulations may exclude from the operation of specified provisions in this division, specified classes of employees included in a number of classes, but at subsection (c) indicates employees employed on a casual basis for a short period. [6] Regulation 30B provides that employees are excluded from the operations of the relevant subdivisions if an employee is a casual employee engaged by a particular employer for a short period within the meaning of subregulation (3). Subregulation (3) states: "That a casual employee is engaged by a particular employer for a short period if the occasions on which the employee works for that employer, under that engagement, occur within a period of less than 12 months." [7] Ms Hunt, who appeared for Manpower in this matter, drew the Commission's attention to a decision of the Full Bench in the matter of Bluesuits Pty Ltd trading as Toongabbie Hotel [Print S0282] where the definition of a casual was addressed. At paragraph 14 of that decision the Full Bench indicated: "It is apparent from the terms of regulation 30B(3) a casual employee may be engaged by the one employer on a regular and systematic basis for a sequence of periods of employment during the period of more than 12 months. An engagement which involves regular work, the same or similar times each week is within the concept of casual employment contemplated by the regulations." [8] In this case the period of employment was less than 12 months. I am satisfied on the basis of the evidence that has been presented that in this case the applicant, Mr Kendall, was employed as a casual and was paid casual rates. He was not entitled to sick leave, annual leave or long service leave by agreement through his signing the exhibit H1, the application form. He worked regularly for 40 hours a week. He was paid on each occasion on the basis of an hourly rate significantly in excess of the award rate. [9] Bearing in mind all of the characteristics of Mr Kendall's employment, as I say, I am satisfied that his employment was covered by the exemption which is contained in regulation 30B(1)(b) and accordingly his application should be struck out as wanting for jurisdiction. ORDER [10] That the application be struck out for want of jurisdiction. BY THE COMMISSION: COMMISSIONER Appearances : J. Robertson and E. Moorhead for the applicant. J. Hunt for the respondent. Hearing details: 2003. Darwin: April 30. Printed by authority of the Commonwealth Government Printer <Price code B>