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[Extract from Queensland Government Industrial Gazette,

dated 13 May, 2005, Vol.179, No.2, pages 24-28]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1999 – s. 74 – application for reinstatement

Queensland Independent Education Union of Employees AND Educang Limited (No 2) (No. B266 of 2004)

COMMISSIONER ASBURY29 April 2005

Unfair dismissal –Alleged inconsistency between Award and contract of employment –Industrial Relations Act 1999 s. 135 – Issue of whether contract of employment had valid end date because of alleged inconsistency with Award remitted on appeal – Whether contract of employment was for a specific period or task – Industrial Relations Act 1999 s. 72(1)(d) – Whether contract of employment terminated by effluxion of time –Contract of employment may be viewed in one way in terms of Award entitlements and in another way in terms of exclusion from unfair dismissal provisions – Contract of employment may not be for a specific period or task so as to exclude employee from bringing unfair dismissal application but may be found to have terminated by effluxion of time – Standard of proof in Commission proceedings – Finding that evidence did not establish inconsistency between Award and contract of employment – Finding that contract of employment was not for a specific period or task because of provision for unilateral termination – Finding that contract of employment terminated by effluxion of time – No termination at the initiative of the employer – Application dismissed.

DECISION

1. BACKGROUND

In a decision reported at 177 QGIG 89, the Commission as presently constituted dismissed an application for reinstatement by the Queensland Independent Education Union of Employees(QIEU) on behalf of Paul Collins. The respondent in that matter was Educang Limited. The application for reinstatement was dismissed following a hearing on contentions of the respondent that:

  • the contract of employment had terminated by effluxion of time rather than at the initiative of the employer;
  • the applicant had been engaged for a specified period and was excluded from making an unfair dismissal application by s. 72(1)(d) of the Act; or
  • the contract was one for a probationary period.

The application was dismissed on the ground that employment had terminated with the effluxion of time, and not at the initiative of the employer, because the contract of employment specified an outer limit beyond which employment would not continue in the absence of a further offer of employment. The remaining contentions of the respondent were rejected.

QIEU appealed the decision to dismiss the application to the Industrial Court of Queensland. The appeal was allowed. The decision of President Hall in the appeal is published at (2005) 177 QGIG 856.

2. THE ARGUMENT ON APPEAL

The argument on appeal was that the Commission at first instance erred in law, by failing to deal with an argument put to the Commission by the Union’s advocate (Mr Spriggs). That argument was that:

  • the employment of Mr Collins was regulated by the Teachers’ Award – Non-Governmental Schools(the Award);
  • that the contract of employment was inconsistent with the Award; and
  • that s. 135(2) of the Industrial Relations Act 1999(the Act)requires that the contract be interpreted and take effect as if it were amended as necessary to make the area of inconsistency conform with the Award.

Accordingly, it was contended that once the contract of employment was read as directed by s. 135(2) of the Act the cessation date disappeared and the engagement could not have come to an end with the effluxion of time. It was also contended on appeal that because the Commission at first instance had held that Mr Collins was not employed for a specific period of time, he could not be held to be a fixed term appointee for the purposes of the Award.

In allowing the appeal President Hall found that Mr Collins was employed as a Teacher and that the Awardapplied to his activities. President Hall also found that the outer limit on the duration of Mr Collins’ contract of employment must yield to s. 135(2) of the Act and to the Award, and went on to note that whether the circumstances of Mr Collins’ termination amounted to a termination at the initiative of the Respondent when viewed against an Award modified as required by s. 135(2) was not argued on the appeal and that nothing in the decision on the appeal was intended to shed light on the difficulties which might arise in attempting to answer this question. The matter was remitted to the Commission as presently constituted to hear and determine according to law.

3. THE HEARING OF THE MATTER REMITTED TO THE COMMISSION

Given that the basis of the appeal was that the Commission had failed to deal with an argument put at the original hearing, and that the parties were required to file statements of evidence from all witnesses and an outline of submissions for the original proceedings, it was my view that leave of the Commission would be required if either party sought to adduce evidence beyond that contained in witness statements in the original proceedings. Accordingly, directions hearings were conducted by the Commission as presently constituted for the purposes of establishing whether the parties would rely on material already before the Commission in respect of this issue, or whether leave would be sought to adduce additional evidence.

Neither of the parties sought leave to adduce additional evidence, and Mr Spriggs for the applicant indicated reliance on the witness statement detailing Mr Collins’ evidence and oral evidence given by him in the original proceedings.

4. INCONSISTENCY BETWEEN THE AWARD AND THE CONTRACT OF EMPLOYMENT

The inconsistency between Mr Collins’ contract of employment and the Award is said by QIEU to arise from clause 2(18) of the Award, which provided, at the time the contract was entered into, as follows:

“ ‘Fixed Term Appointee’ shall be defined as a teacher appointed by the school to accommodate an identifiable short term need. Without limiting the application of the foregoing, an identifiable short term need could include:

(a)Special projects;

(b)Proposed closure of a school;

(c)Special Government grants;

(d)Filling the position of a specified Teacher who is on nominated leave from the school;

(e)Filling the position of a teacher arising from a resignation, where such a position is declared vacant and no suitable permanent teacher is available:

Provided that fixed term appointees shall be employed for a period no greater than 12 months and shall not be regarded as probationary teachers: Provided further that if the identifiable short term need exists after the 12 month period, the fixed term appointment may be re-negotiated.

Any agreement reached between a school and an individual teacher as prescribed by this clause shall be in writing, signed by both parties, and shall clearly identify the terms, conditions and specific duration of the appointment.”.

The same provision is found in clause 4.5 of the current version of the Award – the Teachers’ Award – Non-Governmental Schools2003.

It was not contended by QIEU that the contract of employment was inconsistent with the Awardbecause it was for a period in excess of twelve months. Rather, QIEU contended that Mr Collins was not employed to fill a short-term need for a reason identified in paragraphs (a) to (e) of clause 2(18). Support for this contention is found, according to QIEU in evidence given by Mr Collins in the original proceedings relating to his unfair dismissal application. That evidence was given in the witness statement detailing Mr Collins’ evidence in chief filed by QIEU in accordance with directions for the conduct of those proceedings.

The contents of that witness statement were admitted into evidence and the statement was marked as Exhibit A1 in the proceedings. The portion of Mr Collins’ evidence relied upon in this regard appears at paragraph 33 of the witness statement as follows:

“I was the fourth role holder to hold the role of Head of Middle Schooling. Prior to my appointment the position was held by Mr Tony Daly. Subsequent to my employment with Educang Mr Daly and then Mr Ian Wetherley were appointed into the position of Acting Head of Middle Schooling.”.

No oral evidence was sought to be adduced from Mr Collins at the original hearing to amplify or clarify this part of his witness statement and he was not cross-examined in relation to this matter. Further the respondent did not call any evidence.

It was submitted that Mr Collins was not an employee excluded from making an unfair dismissal application under any of the provisions of s. 72 of the Act. In particular it was submitted that as Mr Collins’ contract had not been made in any of the circumstances required by clause 2(18) of the Award, it was not a contract for a specific period or task for the purposes of the exclusion provided by s. 72(1)(d) of the Act.

In accordance with the decision of President Hall in the appeal in relation to this matter, Mr Spriggs contended that the outer limit on the duration of the contract must yield to s. 135(2) of the Act and to the Award. Mr Collins was not a fixed term appointee in accordance with the Award and as a result:

  • Mr Collins was not employed for a specified period and therefore excluded from making an unfair dismissal application by s. 72(1)(d) of the Act or any of the other provisions of s. 72; and
  • Mr Collins’ engagement had not expired with the effluxion of time.

It was further submitted that the outer limit on Mr Collins’ contract of employment was removed through the inconsistency with the Award, it was a contract for an indefinite period. Following a performance review, Mr Collins’ employment had been terminated. This was a termination of employment at the initiative of the employer and Mr Collins was entitled to bring an unfair dismissal application.

For the respondent, Mr Jones submitted that there was no inconsistency between Mr Collins’ contract of employment and the Award. In this regard it was submitted that the contract of employment was for a period less than twelve months. Further, it was contended that there had been no termination of Mr Collins’ employment at the initiative of the employer as both Mr Collins and the respondent had both believed that the contract would end on 31 December 2003, and had operated on the basis of this belief.

5. THE ISSUES FOR DETERMINATION

The issues for determination in this case are as follows:

  • Is there an inconsistency between Mr Collins’ contract of employment and the terms of the Teachers’ Award – Non-Governmental Schools?
  • If yes, what is the effect of the inconsistency on Mr Collins’ contract of employment; and
  • If there is an inconsistency and the Award prevails over the contract to the extent of it, did the circumstances of the termination of Mr Collins’ employment amount to termination at the initiative of the employer?

At a macro level, this case also raises the issue of whether an employee’s contract of employment can be viewed in one way for the purposes of entitlements under an industrial instrument and in another way for the purposes of deciding whether that employee is excluded from bringing an unfair dismissal application. There is authority for the proposition that a contract of employment can be viewed two different ways for these purposes.

In Julia Ross Personnel v Rebecca Wain (2001) 166 QGIG 350, President Hall in considering whether an employee was a casual employee and excluded from bringing an unfair dismissal application by s. 72(1)(c) of the Act, said:

“…it does not follow that because an employee is a casual employee for the purposes of an award that the employee is also a casual employee for the purposes of s. 72(1)(c). The circumstance that the relevant Award defines an employee to be a casual employee is certainly a matter of fact to be adverted to in determining whether the employee is a casual employee for the purposes of s. 72(1)(c).”.

Applying this approach, it could be argued that the converse is also correct and that it does not follow that because an employee is not a casual employee as defined by an applicable award, the employee will be found not to be a casual employee for the purposes of exclusion from making an unfair dismissal application. This issue was considered in Peter Farrer v Nationwide Oil Pty Ltd (2001) 167 QGIG 103, in the context of a certified agreement, where it was held that an employee paid and treated as a casual employee for all purposes, was a short-term casual employee as provided in s. 72(1)(c) of the Act and was excluded from bringing an unfair dismissal application, notwithstanding that the employee in question did not meet the definition of a casual employee in the certified agreement applicable to his employment.

It was also noted in Farrer that the fact that employee did not meet the definition of a casual employee in a certified agreement, may have constituted a breach by the employer of that agreement, but was not a sufficient basis for finding that the employee ceased to be a casual employee for the purposes of s. 72(1)(c) of the Act in circumstances where the employee had been paid and treated as a casual employee.

If some aspect of a contract of employment is inconsistent with an award for the purposes of s. 135 of the Act, then the employee has a remedy for breach of the award or may make a claim for wages due under it. It does not follow that the employee can rely on that inconsistency to avoid an exclusionary provision under s. 72 of the Act that would preclude the employee from making an unfair dismissal application. In this regard, it is arguable that the exclusions in s. 72 of the Act are focused on the substance of the relationships which give rise to them rather than their technical form. Thus if the substance of a contract of employment is that the employee was employed on a casual basis, the fact that the contract breaches some award restriction with respect to casual employment does not change the fundamental nature of the contract.

On the other hand, s. 135 of the Act operates so that a contract of employment providing for employment conditions less favourable to an employee than those in an applicable award, is varied to the extent of its inconsistency with the award. It could be argued that to hold that an employer may enter into a contract of employment which provides for employment conditions less favourable than those in an applicable award, and then rely on that contract to exclude the employee from making an unfair dismissal application, would be to allow the employer to benefit from what is potentially an award breach. It is also arguable that to find that an employee is excluded from bringing an unfair dismissal application on the basis of a contract of employment caught by s. 135 of the Act is at odds with the objects of the Act (see s. 3) and with the requirement for the Commission’s decisions to be based on equity, good conscience and the substantial merits of the case: see s. 320(3) of the Act. On balance however, I favour the former approach over the latter.

6. EMPLOYEES EXCLUDED FROM MAKING UNFAIR DISMISSAL APPLICATIONS

Section 72(1) of the Act provides a regime whereby employees who fall into certain categories are either excluded from making unfair dismissal applications or are limited in terms of the grounds upon which unfair dismissal applications may be made. Relevantly, s. 72(1)(d) of the Act provides as follows:

“72 Who this chapter does not apply to

(1)Section 73(1) does not apply to –

(d)an employee engaged for a specific period or task, unless –

(i)the main purpose of engaging the employee in that way is, or was at the time of the employee’s engagement, to avoid the employer’s obligations under part 2; or

(ii)the employee is participating in a labour market program and is dismissed before the period ends or the task is complete; or…”.

In my view the exclusion in s. 72(1)(d) operates with respect to an employee engaged under a contract of employment for a specified period or task, and whose employment ceases at the end of the period or upon the completion of the task. Where the contract of employment provides for termination within the specified period or before the conclusion of the task, and termination is not conditional upon a breach of the contract, it will not be a contract for a specific period or task for the purposes of s. 72(1)(d) and will not be caught by the exclusion in that section. Further, even where a contract is for a specific period or task, but is actually terminated before the end of the period or the completion of the task, the exclusion will not apply: Cooper v Darwin Rugby League Inc (1994) 57 IR 328; Anderson v Umbakumba Community Council (1994) 56 IR 102; Grycan v Table Tennis Australia Inc. (Print R7452) and Hughes v Monash University (Print R4303).

For reasons set out in Queensland Independent Education Union of Employees (for Paul Collins v Educang Limited (2004) 177 QGIG 89 at 90, I remain of the view that even where a contract of employment does not meet the requirement for exclusion in s. 72(1)(d) as being for a specific period or task, its term may still be fixed in such a way as to provide for expiry once the end date has been reached.

Thus where a contract of employment validly provides for an outer limit beyond which it will not operate, and employment ceases at that point, there will be no dismissal at the initiative of the employer. This will be the case regardless of the fact that the contract of employment would not have been considered to be one for a “specific period or task” for the purposes of s. 72(1)(d) of the Act, because it contained a provision for termination other than for breach.

In my view, the relationship between clause 2(18) of the Award and s. 72(1)(d) of the Act is as follows. If an employer made a contract of employment with respect to a fixed-term appointee in a manner consistent with clause 2(18) of the Award, the employee could bring an unfair dismissal application if employment was terminated before the expiration of the fixed-term appointment. Further, an employer could not rely on a contract of employment made consistent with clause 2(18) of the Award, as the basis for an employee being excluded from bringing an unfair dismissal application, by s. 72(1)(d) of the Act where that contract of employment contained a right to terminate other than for a breach.

However, where an employee under a contract of employment giving effect to a fixed term appointment under clause 2(18) of the Award ceased employment at the expiration of the term fixed by the contract, there would be a termination of employment by effluxion of time rather than at the initiative of the employer, even where the contract of employment did not meet the definition of a contract for a specific period or task under s. 72(1)(d) of the Act.