C2001/3046, Transcript of Proceedings [2001] AIRCTrans 2948 (30 October 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE GIUDICE, PRESIDENT
SENIOR DEPUTY PRESIDENT KAUFMAN
COMMISSIONER O'CONNOR

C2001/3046
C2001/3048

APPEAL UNDER SECTION 45 OF THE ACT
BY PACIFIC RIM EMPLOYMENT PTY LIMITED
AGAINST A DECISION OF COMMISSIONER
LAING IN C NO 2000/6165 MADE AT PERTH
ON 20 APRIL 2001 RE TERMINATION OF
EMPLOYMENT OF MR CLARKE AND MR LLOYD

PERTH

10.02 AM, TUESDAY, 16 OCTOBER 2001

PN1

MR H. PARRY: I seek leave to appear on behalf of the appellant, Pacific Rim Pty Limited.

PN2

MR M.D. LLEWELLYN: I appear on behalf of the respondents in both matters.

PN3

JUSTICE GIUDICE: Do you have any objection to Mr Parry's application, Mr Llewellyn?

PN4

MR LLEWELLYN: Since they are points of law I do not think I can have. If there are no points of law then I will object and we can leave here now.

PN5

JUSTICE GIUDICE: Yes. Well, leave is granted, Mr Parry.

PN6

MR PARRY: Well, there are serious points of law, as your Honours would expect. If your Honours please I have prepared an outline of submissions which may assist in following the logic of what I am going to submit to the Commission and if I could hand up three copies of that and provide a copy to Mr Llewellyn.

PN7

JUSTICE GIUDICE: Mr Parry, just while we are looking at that, could you just explain to me what the relationship is between Pacific Rim Employment Pty Limited and the other company, Australasian Correctional Management?

PN8

MR PARRY: Nothing that needs to take up this Appeal Bench's time. The position was that employees, and perhaps I will go back a step, this all concerns employment arrangements that existed at Derby, at the Curtin RAAF Base. Up there, your Honours might have noted, there are being detained people that have come on boats and been taken into custody off Ashmore Reef and these detainees are taken to Curtin and there kept in custody. There are there a number of people, guards and cooks, who take care of them. Now, Australian Correctional Management is a company that provides various prison guards and associated employees around Australia at various places.

PN9

There is a separate company called Pacific Rim Employment which provides staff at the Curtin Centre and the way it is structured is this, people who are or become employees of ACM, as I will describe it, are transferred to the employment of Pacific Rim and perform duties at the Curtin base. Now, your Honours might have also noted that the original contract, I think, between ACM and these employees, and I will go to this in a bit more detail shortly - - -

PN10

JUSTICE GIUDICE: That is annexure PL2 to Mr Lloyd's statement, is it?

PN11

MR PARRY: That is right.

PN12

JUSTICE GIUDICE: Sorry if I distracted you, I seem to have, if you want to deal with this in the order in which you had intended to as you please.

PN13

MR PARRY: No. It is not so much a distraction as: number (1) I don't know precisely whether either of these companies are related in a corporate sense, I think that is the long and the short of it; and there was no evidence below about any corporate relationship between the two in any legislative corporate sense, and I am not asserting there is and I don't know the answer.

PN14

JUSTICE GIUDICE: Yes.

PN15

SENIOR DEPUTY PRESIDENT KAUFMAN: Well, while you are distracted, before you return, I just thought if I may, Mr Parry, you said that the arrangement is that employees of ACM are seconded, if you like, to Pacific Rim, is there any evidence as to whether the respondents in this case were employees of ACM?

PN16

MR PARRY: Yes. There is.

PN17

SENIOR DEPUTY PRESIDENT KAUFMAN: What is the answer, were they or weren't they?

PN18

MR PARRY: The answer is this, that on 30 December 1999 Mr Lloyd signed two documents. He signed the two documents that are attached to his statement. First is exhibit PL1, which ultimately became the schedule attached to his AWA and another document, being PL2, which is the contract between Australian Correctional Management and this employee, so Mr Lloyd, as a casual cook with a salary of $16.15 per hour with his hours of work to be as required by the roster, I think that is paragraph 5. Now, if that contract was signed there is no evidence or suggestion that, as a matter of fact, Mr Lloyd ever performed services as a casual cook for ACM. So in a technical sense he had signed an employment contract as a casual cook but had never performed duties under it.

PN19

SENIOR DEPUTY PRESIDENT KAUFMAN: The employer didn't sign that document, that is exhibit PL2.

PN20
MR PARRY: No. The employer did not sign that contract. I think the evidence was a representative of the employer gave it to Mr Lloyd on 30 December 1999. I think his statement in paragraph 10 refers catching a taxi to ACM and signing the contracts. So that is where the evidence stood. Now with regard to the other applicant, Mr Clarke, his ACM contract was not before the Commission but he did give evidence at paragraph 109. He was asked, I think in cross-examination, at PN108:

PN21

You also signed a contract with Australasian Correctional Management before entering into a contract with Pacific Rim?---Yes.

PN22

And that contractor provided that - the contract provided that you were to be a casual cook?---Yeah. Actually, I haven't got a copy of that -

PN23

and there is a bit of to-ing and fro-ing which simply establishes that he doesn't have a copy of it. I don't think it is asserted that he didn't sign such a copy. Now, perhaps to go back a step, it was the practice of ACM to provide staff to Curtin. Often the staff were engaged at other ACM operations, they were guards or performed other duties elsewhere and the manner of employment worked out was that these people were employed by ACM would go up to Curtin, sign the AWA and the AWA specifically provides that the AWA replaces any contract with ACM. It also provides that to sign that AWA it was necessary that you be an employee of ACM.

PN24

So this was following through the system for two persons that had not, at the highest, been long term employees of ACM. Now, perhaps to go back a step earlier, the evidence was that the arrangements at Curtin have not been long standing ones, the evidence was that the first refugees, and I will describe them as refugees or detainees, were taken to that site on 28 September 1999, that is in paragraph 482. Mr Sadlo commenced employment soon thereafter. It was also the evidence that there was variation in the numbers of detainees. That evidence appears around 453.

PN25

So Pacific Rim Employment set up this system whereby they could provide staff to Curtin. Now, what happened in respect of these two people is that Mr Sadlo rang them in November or December, said there are positions up at Curtin. I think Mr Lloyd came in and signed the AWA schedule and the contract of employment with ACM and that was on 30 December and on 2 January he travelled to Curtin and commenced work and, as I follow the sequence, on 3 January he signed an AWA which was exhibit PL3.

PN26

Now, perhaps it is appropriate at this stage to go to that AWA that was signed on 3 January. The Commission will appreciate, essentially there are two arguments being advanced by the appellant. The first is that what was constituted by the arrangements in early January was a contract for a specified period of time.

PN27

SENIOR DEPUTY PRESIDENT KAUFMAN: Between Pacific Rim and the appellant?

PN28

MR PARRY: That is so.

PN29

JUSTICE GIUDICE: Sorry, Mr Parry, this is PL3, is it?

PN30

MR PARRY: Yes. There is no difference between the AWAs for Mr Clarke and Mr Lloyd. Now, these are the particular parts I would want to draw the attention of the Commission to. Firstly, 1.1, which provides that:

PN31

The AWA binds the employee and Pacific Rim Employment while the employee is engaged in work that falls within the scope of this agreement.

PN32

Whilst I return to this position later I submit that this sets up an AWA which operates for a year but within it contemplates discrete periods of employment. 1.2 refers to:

PN33

The AWA prevailing over and replacing any other award, agreement or contractual arrangement that may otherwise apply to the employee and Pacific Rim.

PN34

SENIOR DEPUTY PRESIDENT KAUFMAN: Would that prevail over or replace a contract between the employee and ACM?

PN35

MR PARRY: No. It would not. I do indicate that there wasn't any evidence of any awards that apply in this case in any event, but the Commission may have noted there was much evidence about discussions that went on between Mr Sadlo and various of the two applicants. So we simply say what was signed here was something that overcame any contractual arrangement that would otherwise apply. Paragraph 4 contains definitions. There is 4.4: Code of Conduct, and paragraph 5.1:

PN36

When the AWA comes into operation, whenever the filing receipt is issued or the day on which the employee first takes up employment.

PN37

5.2:

PN38

The terms of this AWA is for 1 year from the date it commences operation.

PN39

Now, that thereafter follows anti-discrimination and dispute settlement provisions. Clause 8 requires that:

PN40

The employee adheres to the code of conduct, as amended from time to time.

PN41

Then follow a number of clauses, each of which contain within them the concept of discrete periods of employment. Paragraph 10.1 refers to the salary and benefits during each period of employment under the AWA. 10.2 again refers to each period of employment. Now, there is reference there to schedule A and your Honours will note in exhibit PL3 that there are actually two schedules, schedule A and schedule B. Schedule A deals with the position at Curtin.

PN42

Now, perhaps remaining with schedule A for a short period, that contains firstly a location, secondly, a link with each period of employment, there is then a period set out, 44 days. There is then provision for any extension of a period of employment will be paid on a day-by-day pro rata basis. Now we would say that any extension of a period of employment can be described in one of two ways. Firstly, if the Commission turns back to 11.1, that provides:

PN43

An employee is engaged to work for Pacific Rim for such period or periods as may be agreed between the employee and Pacific Rim during the life of this AWA.

PN44

Now, that would suggest that if there is to be an extension of a period of employment, that would need to be agreed. Alternatively, an extension could operate as a further engagement, a further period of engagement. Now ultimately we say not a lot turns on that, but can be described in one of two ways. Now, the remaining schedule A, which will become relevant to such concepts as fixed term; there's a cancellation fee in the event that a period of employment is terminated before commencement. The Commission will note remuneration, which is an all-up sum paid on a daily rate. I'm sorry?

PN45

SENIOR DEPUTY PRESIDENT KAUFMAN: It seems to be $20 an hour. It doesn't matter much anyway. It's just that I was interested to know how it compared with the other figure in the other contract, which I think was $16 something an hour.

PN46

MR PARRY: I've got no reason to believe they're the same figures.

PN47

SENIOR DEPUTY PRESIDENT KAUFMAN: No.

PN48

MR PARRY: Now, that is an all-up daily rate. It's expressed to include a number of components. It expressly does not include overtime and the Commission will note, 10.3 of the AWA expressly makes clear that there aren't to be payments for overtime. Now, the only other matters in the schedule A, this concept of a period of employment appears in Travel, at the bottom of the page. And over the page there are some matters which go to termination. 5th down is: Absence from base:

PN49

Unauthorised absence from the base may result in termination of the current period of employment of this AWA. Authorised absenteeism may construed as a breach of clause 15 of this AWA. Frequent or prolonged sick leave just by that may result in termination of this AWA.

PN50

And then, immediately after reference to the wet canteen, there is a sentence:

PN51

Be aware that disorderly conduct is a breach of the code of conduct.

PN52

So that's schedule A and if I could take the Commission back to the AWA. I've dealt with clause 11.1. Your Honours will note 11.2:

PN53

Employment will be subject to the following. The employee must be a current employee of ACM.

PN54

So the structure is that these people, casual cooks employed by ACM, are obviously not performing duties at any time for ACM, but falling within the contractual requirement that they be at least current employees of ACM. Now, there is also reference in 11.2.5 to this AWA superseding the contract the employee has with ACM during each period of employment with Pacific Rim.

PN55

SENIOR DEPUTY PRESIDENT KAUFMAN: Sorry, what clause was that again?

PN56

MR PARRY: 11.2.5.

PN57

SENIOR DEPUTY PRESIDENT KAUFMAN: Thank you.

PN58

MR PARRY: So that might address your Honour's question about the earlier matter. If it isn't made clear earlier, it is certainly the intent that this AWA supersedes those other arrangements.

PN59

JUSTICE GIUDICE: Mr Parry, I find it a bit unusual. I can't see how 11.2.1 and 11.2.5 are reconcilable. How can someone be an employee without a contract?

PN60

MR PARRY: Well, in the present case, it's not a reconciliation that needs to take place, because - - -

PN61

JUSTICE GIUDICE: That might be a good answer.

PN62

MR PARRY: Well, well, I'll deal with it on firstly - perhaps relevantly I'll deal with the particular fact of these two applicants. Both are casual employees, expressly so. If one is a casual and not being required to perform duties, one is really debatable whether one's an employee at all.

PN63

JUSTICE GIUDICE: Yes.

PN64

MR PARRY: Number one. Number two: the arrangements, as I think the evidence was, that there were permanent employees of ACM that either were seconded or performed duties up at Curtin. I'm not sure I can take it much further.

PN65

JUSTICE GIUDICE: Is there any evidence that either of these people ever performed work for ACM and were paid by ACM?

PN66

MR PARRY: No, there's not.

PN67

JUSTICE GIUDICE: So it was accepted that this was really about the relationship between the employees and Pacific Rim? That was the base on which it was argued before the Commission.

PN68

MR PARRY: That's right. ACM is only mentioned in two parts. That is, when the general arrangements are described with regard to people travelling up there and secondly, when evidence was given about the signing of the casual contract of employment with ACM.

PN69

JUSTICE GIUDICE: 11.2.6 suggests that some payment is contemplated by ACM. What's the reference to full continuity of leave? Is there any light shed on that anywhere?

PN70

MR PARRY: No. Indeed, the position of both, I think, the applicants and respondents below was that this AWA was not a perfect fit in the circumstances of these two employees.

PN71

SENIOR DEPUTY PRESIDENT KAUFMAN: Especially when one looks at 11.2.2, I suspect.

PN72

MR PARRY: Well, that's correct.

PN73

SENIOR DEPUTY PRESIDENT KAUFMAN: I take it they weren't gazetted in?

PN74

MR PARRY: Well, I can be absolutely proper with your Honour and say there's no evidence.

PN75

SENIOR DEPUTY PRESIDENT KAUFMAN: No evidence, yes.

PN76

JUSTICE GIUDICE: It seems to have been accepted that didn't have any application. I think the Commissioner said something about that.

PN77

MR PARRY: It didn't have any application and I think that, as the Commission may recall earlier, there was a lot of prison guards sent up there and I think the AWA was particularly modelled to address permanent employees who were prison guards that were transferred to Curtin. So 11.2.2. did not apply to, and wasn't argued to apply to these two applicants. They never had any service with ACM, so again that's the position.

PN78

JUSTICE GIUDICE: Yes.

PN79

MR PARRY: The concept of period of employment appears in 11.2.7. 11.3 provides that:

PN80

The AWA is not an offer of ongoing employment -

PN81

which we of course submit is consistent with this concept of periods of employment. There is then a reference to Pacific Rim's policies:

PN82

During each period of employment under the AWA, the employee shall comply with the Code of Conduct Operating Manual.

PN83

And 13.1.2: Government Legislation. Clause 15 deals with termination of employment without notice:

PN84

During any period of employment under this AWA, Pacific Rim shall have the right to terminate the employee's employment without notice in accordance with the Code of Conduct or for any of the reasons listed in schedule A.

PN85

And the Commission will recall that schedule A has a number of matters particularly identified, being unauthorised absenteeism, frequent or prolonged sick leave or disorderly conduct. Now, there is then provision for premature termination of the contract and clause 16.1 contemplates an employee wanting to return to what is described as centre of origin prior to the conclusion of an agreed period of employment. 16.2 more relevantly provides:

PN86

If Pacific Rim directs the employee to return to their centre of origin prior to the conclusion of any agreed period of employment, through no fault of the employee, the employee is to receive full payment for the period that he would have worked had the AWA reached the Conclusion Date.

PN87

And finally, there is again reference to each period of employment in clause 17. Now - - -

PN88

JUSTICE GIUDICE: Mr Parry, could I just ask you one other question? When this Conclusion Date, which has got a capital C and a capital D, in 16.2.1, is that defined somewhere?

PN89

MR PARRY: Not that I'm aware of.

PN90

JUSTICE GIUDICE: Do you know whether it's a reference to the conclusion of the particular period of employment or a reference to the expiry of the AWA?

PN91

MR PARRY: I would submit that it would be clearly a reference to the completion of the period of employment.

PN92

JUSTICE GIUDICE: Yes, because there would be nothing else ascertainable.

PN93

MR PARRY: That's so.

PN94

SENIOR DEPUTY PRESIDENT KAUFMAN: And yet it's a reference to the AWA reaching the conclusion date, not the period of employment reaching the conclusion date.

PN95

MR PARRY: Well, your Honour, perhaps to interpret that clause. Clause 16.2 refers to directing the employee to return to their centre of origin prior to the conclusion - it does use the word "conclusion" - of any agreed period of employment. Now, putting the heading on Conclusion Date might give it an importance beyond what we really think it is. In my submission, when in the preamble it refers to a conclusion of any agreed period of employment, and then this reference to reaching the conclusion date, in my submission, that would logically be read as applying to the date of the conclusion of the agreed period of employment.

PN96

JUSTICE GIUDICE: Does that provision give the employer the right to terminate the period of employment without a reason at any time, subject to payment of whatever that amount is?

PN97

MR PARRY: Not strictly, because it's a provision which is really contemplating the employee returning to their centre of origin. There's no - I don't think it can be construed as a right to terminate. It seems more, again awkwardly, but it seems more addressed to the position of people who return to their centre of origin under the ACM arrangements.

PN98

SENIOR DEPUTY PRESIDENT KAUFMAN: So you'd liken it more to a stand down from employment at the Pacific Rim, being paid for the duration of the contract period with Pacific Rim?

PN99

MR PARRY: Yes. It does have more that flavour to it, your Honour

PN100

JUSTICE GIUDICE: Right. Just trying to follow that through. Is it right that there's no obligation on Pacific Rim under this AWA to provide any work at all? In other words, the AWA could run for 12 months and there could be no periods of employment at all under it?

PN101

MR PARRY: That's so. The AWA doesn't create an obligation to provide a period of employment. It only sets out the terms that apply when a period of employment operates. It's not a contract of employment. It doesn't create the relationship of employer and employee. Rather, it applies when that relationship is in existence.

PN102

SENIOR DEPUTY PRESIDENT KAUFMAN: I suppose I should ask you, because it's troubling me, Mr Parry; the relationship between the clause that says the AWA operates for a year and sections 170VJ and VM, that talk about terminating an AWA. Is it not the case that an AWA remains in operation until it's terminated under section 170VM or in accordance with section 170VJ.

PN103

MR PARRY: Your Honour, as I understand the requirements of the legislation, there is a requirement that there would be an, in effect, a nominal expiry date of the AWA. Perhaps that might be putting it a little bit highly with section 170VH. Section 170VH says:

PN104

An AWA may specify a date as its nominal expiry date.

PN105

Now - - -

PN106

SENIOR DEPUTY PRESIDENT KAUFMAN: If you go to VH(2), it tells you what happens if you don't specify.

PN107

MR PARRY: Well, that then becomes a debate, your Honour, as to whether 5.2 is saying the term of this AWA is for 1 year from the date it commences operation. In fact, it specifies a nominal expiry date.

PN108

SENIOR DEPUTY PRESIDENT KAUFMAN: Yes. I must say that I've certified a number of agreements that have a similar clause that I've taken to be the nominal expiry date of the certified agreement. I hope I'm right.

PN109

MR PARRY: Well, fortunately we're not here challenging every AWA your Honour has certified. Now, your Honour, two things follow. Either the term of the AWA is for 1 year and that is the nominal expiry date, or it doesn't specify it and the nominal expiry date is 3 years. My submission is, for the purposes of this case, an AWA pertains to the relationship of employer and employee. It doesn't create it. This AWA applies when there is a period of employment in operation.

PN110

COMMISSIONER O'CONNOR: It still continues to operate even though you've got a nominal expiry date.

PN111

MR PARRY: That's so, Commissioner, it does so continue. And as you will have noted, section 170 - I think - VJ(1) refers to when it stops operating. So it continues on till some event occurs stopping its operation. So those were the instruments that were in existence at the beginning of January in respect of Mr Lloyd and Mr Clarke. Now, both Mr Lloyd and Mr Clarke commenced periods of engagement at the beginning of January. With Mr Lloyd, he finished his 6-week cycle and he then gave evidence at paragraph 39.5 - I'm sorry, not paragraph - page 39, line 5, about what happened at the end of that period.

PN112

SENIOR DEPUTY PRESIDENT KAUFMAN: Page 39 of?

PN113

MR PARRY: The transcript page 39. And this was in re-examination by Mr Llewellyn. And he said on the transcript, page 39, he was being asked about conversations and arrangements between he, Mr Sadlo and Mr Lloyd, and he was asked at line 5:

PN114

At the conclusion of the first 6-week period, did he indicate to you that he had approval to re-employ you?---Yes ...(reads)... who gave him that approval?---I believe he recommended and Sydney Head Office would approve it.

PN115

Now, those were the words put to Mr Lloyd. For the sake of completeness, I should indicate that below that, Mr Llewellyn then put to Mr Lloyd; did he actually use the expression re-employ? And the immediate answer was no, and then there were various objections taken to, on a range of fronts, I imagine, and that was the end of the re-examination. But that's what happened. That was the evidence of what happened at the end of Mr Lloyd's first 6-week period and his second 6-week period. Now, he then started a third 6-week period in March - in late February/March and there was an agreement reached between Mr Lloyd and Mr Sadlo that the 6-week period would be extended.

PN116

I'm sorry. I've mislead the Commission. This was in the second period. I'm sorry. I'm following my outline here, which is imperfect. There was a second 6-week cycle. During that cycle there was an agreement to extend for 2 weeks. I think the transcript shows at page 35, line 15, that this was at the request of Mr Lloyd. So Mr Lloyd requested 2 weeks. There was verbal approval given by Mr Sadlo to this and that appears in Mr Lloyd's statement at paragraph 19. That extension was to be for 2 weeks and that was approved in a formal sense and the reference to the exhibit appears in the outline.

PN117

Now, then he had his 3-week break and he returned to Curtin. He'd been there a week and he requested an extension of service of another week and the documentation appears attached to, I think, Mr Sadlo's statement. Now, as to that extension, the evidence was that Mr Sadlo, the supervisor, had recommended it but I don't recall there being any evidence that it was approved or accepted. And then a week after this, still obviously within the 6-week period, the engagement finished - it was finished - and what happened there is set out, I think, in paragraph 731. There was some incident involving an inmate and Mr Lloyd was asked to leave.

PN118

MR LLEWELLYN: Perhaps I should correct that. It wasn't an inmate. It was actually a guard. There is a difference.

PN119

MR PARRY: Well, I'm assisted by that. Yes. Whatever, there was some fuss, I think, with a Samoan guard, as I recall.

PN120

MR LLEWELLYN: New Zealander.

PN121

MR PARRY: Well.

PN122

MR LLEWELLYN: But close.

PN123

MR PARRY: Close. And he was paid out the remainder of the term and it was then ACM advised that Mr Lloyd was not to return. Or via ACM. Now, those are the sort of facts with regard to Mr Lloyd. With regard to Mr Clarke, again he signed similar documents, commenced at Curtin in mid-February and we don't have a precise date. Mr Sadlo and Mr Clarke agreed to a further 6-week period. There was some debate about at whose request it was, but ultimately there was an agreement reached that Mr Clarke would have his 6-weeks and immediately following that work another 6 weeks, and then he would have 2 weeks off. And then on 14 March he fell ill and returned to Perth and he was also paid out for the remainder of his term and not offered other engagements. And it was that not offering engagements that really leads to the applications before the Commission, the Commissioner at first instance.

PN124

SENIOR DEPUTY PRESIDENT KAUFMAN: With Mr Lloyd, it was more a termination?

PN125

MR PARRY: Yes. Well, it's a bit more blurred, I think. Yes. He was asked to leave following the incident that Mr Llewellyn has referred to. Proceedings before the Commissioner involved both applicants giving evidence. Mr Sadlo gave evidence. He was the supervisor up there. And the Commission might have noted on reading the transcript, much references to the wet canteen and late night discussions and so forth which didn't, in my submission, advance the matter a lot. Some employees of the appellant gave evidence as to their employment arrangements and their understanding of it. Again, probably not advancing the position a lot.

PN126

The Commissioner ultimately made a decision that the employees were not casual or fixed term. Now, the decision of the Commissioner commences with a recitation of the regulations and the legislative scheme. It then deals with a number of these discussions before and discussions after about nothing being guaranteed and whether there was permanent employment or not. The Commissioner at paragraph 27 turns to deal with the argument about fixed term contracts and he then, in paragraph 27, says that in that regard, the AWA does not appear to meet at least two significant requirements for a contract to be considered fixed term. Now, might I say at this stage that it's our position that a contract is a different matter from the AWA.

PN127

COMMISSIONER O'CONNOR: The AWA doesn't seem to envisage that at clause 18, does it?

PN128

MR PARRY: You're referring there, Commissioner, to the variation of contract?

PN129

COMMISSIONER O'CONNOR: Yes.

PN130

MR PARRY: Well, it says variation of contract. I can't take it a lot further than that.

PN131

COMMISSIONER O'CONNOR: Well, one then presumes that that means that it can vary schedule A, which sets out the terms of periods of employment, so it's an indeterminate contract, isn't it, to that extent, because it can be varied at any time.

PN132

MR PARRY: Well, I think, in my submission, any contract can be varied by agreement. One doesn't need to have a clause saying: This contract can be varied by agreement. As a matter of contract law, if A and B agree on something, there exists a contract. If thereafter they agree to either vary that contract, then either it can be categorised as one of two things. The original contract was varied or there's the creation of a new contract which incorporates the old contract and the variation. In my submission, the fact that a contract can be varied doesn't change its nature.

PN133

JUSTICE GIUDICE: There's a case about a fellow employed by a building company. Victorian Supreme Court case.

PN134

MR PARRY: Which I was looking for about an hour ago, which is pretty difficult to find over here. I think it's a judgment of Ashley J.

PN135

JUSTICE GIUDICE: Correct.

PN136

MR PARRY: I couldn't remember the name of the case.

PN137

JUSTICE GIUDICE: It was the developers of the Como Centre.

PN138

MR PARRY: No, your Honour is not correct there, I don't think, with the greatest of respect. I think that's Jack Chia's case.

PN139

JUSTICE GIUDICE: Quentin and Jack Chia, wasn't that the case?

PN140

MR PARRY: Jack Chia dealt with, well, it probably contained the same strands of his Honour Ashley J's thinking that appear in a more recent case.

PN141

JUSTICE GIUDICE: Yes.

PN142

MR PARRY: I think your Honour is correct in that there is some reference to that in Jack Chia's case but I think there was a more recent case in the last 3 or 4 years, which I can't assist your Honour with, which says if you agree to vary it, you in effect create a new contract. And I apologise but I can't give you the reference, but it's a bit hard to get them over here.

PN143

SENIOR DEPUTY PRESIDENT KAUFMAN: Mr Parry, you say the AWA is not the contract of employment. Where do we find the terms of the contract of employment?

PN144

MR PARRY: The contract of employment is what is agreed - perhaps to go back a step. The AWA does not constitute or create employment. It does apply to the employment relationship. Now, there is a contract of employment reached when the employee and PCS agree that a particular employee will work for a 6-week period. But to that period of engagement apply the terms of the AWA, so I'd probably accept that within that period of engagement, the parties have agreed that the terms of that engagement shall be the AWA teams.

PN145

SENIOR DEPUTY PRESIDENT KAUFMAN: Especially schedule A.

PN146

MR PARRY: Yes.

PN147

JUSTICE GIUDICE: So it's the same analysis as the application of an award. The award doesn't create a contract, but where there is a contract, it operates in relation to it. Is that the way you're putting it?

PN148

MR PARRY: I think it's more complicated than that, your Honour.

PN149

JUSTICE GIUDICE: I'm always open to simplifying.

PN150

MR PARRY: I think it might be more simple than I'd like it to be. The legislation allows for an agreement to be made between an employer and an employee pertaining to their employment.

PN151

SENIOR DEPUTY PRESIDENT KAUFMAN: And that can be either before or after the employment has started?

PN152

JUSTICE GIUDICE: This is the latter case, when the employment has already commenced.

PN153

MR PARRY: If we ignore the fact that this is an AWA, no doubt an employer or Mr Lloyd and Mr Clarke have reached an agreement with their employer about the terms and conditions that are to apply to their periods of engagement. Now, that agreement has become an AWA and has the force of law accordingly. It can continue to operate whilst there is not employment in existence. So in a way, it is equivalent as your Honour the President has noted to an award, but it's not quite the same as perhaps the Byrne and Frew analogy because there can be an actual agreement underpinning it, whereas with an award or an industrial agreement, your Honours would appreciate the Humfrey Carpets debate about whether you can create contractual relations.

PN154

SENIOR DEPUTY PRESIDENT KAUFMAN: Mr Parry, when do you say that the employment of the appellants with Pacific Rim Employment Pty Limited actually commenced? What was the start date of their employment with that company?

PN155

MR PARRY: With regard to Mr Lloyd, he travelled to Curtin on 2 January 2000 and commenced work, so he would have started on that date. Mr Clarke commenced on 3 January when he travelled to Curtin and commenced duties.

PN156

SENIOR DEPUTY PRESIDENT KAUFMAN: And are they the dates on which each of them signed their respective AWA?

PN157

MR PARRY: Mr Lloyd signed his AWA, well, I withdraw that. Mr Lloyd signed on 30 December 1999. Well, signed, I'm putting it. He gave evidence about signing it. Yes, Mr Lloyd gave evidence that he signed the Schedule A and the contract at ACM on 30 December 1999.

PN158

SENIOR DEPUTY PRESIDENT KAUFMAN: Yes. That's when he became an employee of ACM, to the extent that a casual employee who doesn't work can be an employee.

PN159

MR PARRY: That's right. He was a casual employee that wasn't being called on to perform duties in the technical sense. And then he travelled up to Curtin and he then performed duties on 2 January, then signed an AWA on 3 January 2000. That AWA incorporated exhibit PL1. Mr Clarke commenced and signed the AWA and the ACM contract on the same day, 3 January. And then for good measure, he signed the contracts again on 4 January. To be sure, to be sure.

PN160

SENIOR DEPUTY PRESIDENT KAUFMAN: Sorry, I think we're distracting you.

PN161

MR PARRY: I'm assisted by the distractions. Now, I was dealing with the Commissioner's decision in paragraph 27. There were two bases upon which he said that it didn't meet the requirements to be considered fixed term. The first was the unilateral right of the employer to terminate the employee under the terms of the AWA. He said he's clear that:

PN162

In certain circumstances outlined in the agreement, the employee can be dismissed and there is no restriction on the employer's entitlements in this regard.

PN163

Now, in my submission, the agreement that is referred to therein presumably is the AWA, which I will accept applies to the contract of employment between the employer and the employee. Now, a right in my submission, when one turns to the AWA as I've taken your Honours to, clause 15.1 sets out termination without notice and provides that:

PN164

During any period of employment under this AWA, Pacific Rim shall have the right to terminate the employee's employment without notice in accordance with the Code of Conduct or for any of the reasons listed in schedule A.

PN165

Now, the Code of Conduct was not before the Commissioner, so we can only glean what the Code of Conduct referred to by reference to the documents. Now, as I've taken the Commission to, it was a requirement that the employee comply with the Code of Conduct and disorderly conduct was a breach of the Code of Conduct. Presumably what the Code of Conduct did was set out a code for the conduct of employees. Now, the reasons listed in schedule A are reasons that appear on the second page, schedule A. They are such matters as unauthorised absences or absenteeism or disorderly conduct.

PN166

COMMISSIONER O'CONNOR: Or being sick too often.

PN167

MR PARRY: I am sorry?

PN168

COMMISSIONER O'CONNOR: Or being sick too often.

PN169

MR PARRY: Yes, or being sick too often, frequent or prolonged sick leave. Now, in my submission, the agreement does not contain provisions for termination of employment outside those set out in clause 15.1. There is not provision for termination with notice. Now, this raises issues that have been dealt with by the Industrial Relations Court and this Commission and relevant authority there is the decision of a Full Bench of this Commission, Trigar v La Trobe University, dated 1 November 2000, print T2860. I have three copies of that for the Commission and one for Mr Llewellyn.

PN170

Now, Trigar dealt with two matters and one of them, well, the Commission there was dealing with a contract of employment by La Trobe University, the terms of the appointment are set out in paragraph 3 of that decision. The Commission may note in paragraph 3 that there was contained within the last line of 2.3 that:

PN171

The employment could be terminated for cause based upon serious or wilful misconduct.

PN172

Now, this raises the issues, this particular issue in the present case, of whether a contract which allows for termination in the event of certain conduct is or can be a contract for fixed term. Now, there were two arguments advanced in the La Trobe case, one of them dealing with the prospects for renewal or extension, and that appears in paragraph 4, 5 and 6. I will come back to that. The second deals with paragraph 9, that is:

PN173

If a contract can be terminated for cause based upon serious or wilful misconduct, whether that makes the contract not one for a fixed term.

PN174

Now, I am not going to read the Full Bench decision, paragraphs 9, 10 and 11 deal with this. I think paragraph 11 is upon that which I would rely:

PN175

It is clear from our analysis and the previous paragraph that properly construed the expression ...(reads)... time was the unqualified right to terminate without reason -

PN176

and thereafter is set out a quote from Anderson. The Commission will note halfway down about the third line:

PN177

Different considerations may apply where a contract of employment for a period of time fixed by clearly ...(reads)... the contract on breach by the other side.

PN178

There is then reference to unqualified rights to terminate without reason. Indeed, I adopt the last part of that particular decision, about:

PN179

We have decided the contract provides that the only circumstance in which the contract may be terminated ...(reads)... contract seems consistent with the contract being one for a specified period of time.

PN180

The Full Bench notes that it didn't have to decide the issue. Now, I would submit, firstly, that the Commissioner was in error when he concluded that the AWA or the employment contract in the present matter made clear that in certain circumstances outlined in the agreement the employee can be dismissed and there is no restriction on the employee's entitlements in this regard. In my submission, the AWA only permits termination of a period of employment when there have been matters associated with conduct or performance.

PN181

SENIOR DEPUTY PRESIDENT KAUFMAN: That is how you categorise long periods of absence on sick leave, do you?

PN182

MR PARRY: Yes. I do. I say that that - and it is an imperfect analogy, but the Commission will know that section 170CG refers to capacity and conduct being two matters that can justify a termination on notice and with procedural requirements met. In my submission, a right to terminate for reasons of capacity or conduct would not make a contract, not a fixed term contract. Indeed, in my submission, that would only be logical if an employee is in fundamental breach or breach of the terms of the contract then, as the Full Bench noted, that doesn't necessarily not make the employment for fixed term if the contract reserves a right to terminate in those circumstances.

PN183

Secondly, if an employee is not performing his or her duties under the contract, because of a lack of capacity perhaps, that would, in my submission again, not be inconsistent with a fixed term contract if there was a right to terminate for that. Now, the second reason the Commissioner advanced was also set out in paragraph 27:

PN184

Secondly, the agreement provides for extensions of the work term and indeed in both cases now before the Commissioner Mr Lloyd and Mr Clarke worked beyond the term initially specified by the company.

PN185

Now, in my submission, with regard to Mr Lloyd, in my submission that is not the case in respect of the term, the period of engagement in which he was working when he was terminated, that is there was not an extension approved at that time when Mr Lloyd's employment was brought to an end. Of course, I accept with regard to Mr Clarke that that was the case. So that is the one area of difference in this case between these two employees. Now, here the Commissioner is no doubt referring and relying on reading clause 11.1 of the ACM, that is people can agree on terms of employment with schedule A, the third paragraph under the heading: Length of Each Period of Employment. After setting out the period it says:

PN186

Any extension of a period of employment will be paid on a day-by-day pro rata basis.

PN187

Now, I simply say that with regard to the provision regarding any extension of a period of employment that simply sets out the rate of pay to be applied if there is an agreement as to an extension. Now, this raises the issue - and it raises the issue I was debating with the Commissioner earlier - if one has a contract for a fixed term that you can agree or it contemplates that parties can agree on a new term or change the date, whether that changes the nature of a contract to not being a contract for a fixed term.

PN188

Now, in my submission, if there is a fixed term contract, as we say there is here, that is the parties have agreed on a period of employment for 44 days and the contract contemplates that the employer and the employee can agree to a variation of the contract and they agree to a new period of a new date then one of two analyses operate. Firstly, as the President raised earlier, there might be a new contract created and obviously that was in the contemplation of Ashley J in the decision which I can't assist the Commission with, so number 1.

PN189

The second is that it is the same contract but there has been a new date put in it. Now, in my submission, agreeing a new date by an employer and employee does not change the nature of the contract. The exclusion on which we rely in regulation 30B refers to an employee engaged under a contract of employment for a specified period of time. That is what the contract needs to be. Now, having a right to change that period of time doesn't alter the nature of the contract.

PN190

Now, some of these decisions of the Commission deal with extensions, that is where there is a period of time and then at the end of that period something happens whereby the contract simply continues on, the formalities are not met and at some stage further down the track people say: well, it is no longer a fixed term contract, and that is no doubt correct but where parties agree on a new date, in my submission, it remains a contract for a fixed term. Now, there are two decisions of the Commission that bear on this - - -

PN191

JUSTICE GIUDICE: Mr Parry, do you say there was an agreement here on a new date?

PN192

MR PARRY: Yes. That is with regard to Mr Lloyd what happened was that - no, I am sorry, with regard to Mr Lloyd, his third engagement commenced on 19 May. He requested an extension from 3 July, which was going to be the 44 day period, to 10 July. The Commission will note that request is in attachment WS2 to the statement of Mr Sadlo.

PN193

SENIOR DEPUTY PRESIDENT KAUFMAN: What tab is that behind, Mr Parry?

PN194

MR PARRY: Tab 24.

PN195

SENIOR DEPUTY PRESIDENT KAUFMAN: Thank you.

PN196

JUSTICE GIUDICE: What do you mean, an extension from 3 July to 10 July?

PN197

MR PARRY: Yes. The 44 day period commenced on 19 May and ran until 10 July. Now, Mr Lloyd requested an extension and this is his document, it is dated 25 May. It says:

PN198

I am currently employed as a cook. I would like to express an interest to extend my service until 10 July, my contract start date is 19 May and my contract finish day is 3 July. Thank you for your consideration.

PN199

SENIOR DEPUTY PRESIDENT KAUFMAN: Mr Parry, is there any significance in the fact that the document is a pro forma ACM document and it appears that he is seeking approval from ACM to extend his contract with Pacific Rim?

PN200

MR PARRY: No. In my submission, nothing turns on that because the document is a memorandum addressed to Brad Linguard, Centre Manager, Curtin IRPC.

PN201

SENIOR DEPUTY PRESIDENT KAUFMAN: Is there any evidence as to Mr Linguard's employer?

PN202

MR PARRY: I don't know.

PN203

SENIOR DEPUTY PRESIDENT KAUFMAN: The document is headed: ACM Curtin Immigration Reception And Processing Centre.

PN204

MR PARRY: Yes. I don't know the answer to that.

PN205

COMMISSIONER O'CONNOR: It is very beneficial because it seems to be that it fits in with "The Operational Requirements" of Mr Linguard.

PN206

MR PARRY: I am sorry, I am not sure that I follow that - I see: Comments - The Operational Requirements. I think the evidence was, in that respect, that the term that was recommended was circled by Mr Sadlo. Mr Sadlo circled that - - -

PN207

SENIOR DEPUTY PRESIDENT KAUFMAN: On 26 May not 26 June, as I understand the evidence. I thought that somebody said that date was wrong, I think Mr Sadlo said the date was wrong. You will see the date at the top is 26 May, the date at the bottom is 26 June. Nothing may turn on it.

PN208

MR PARRY: Well, no, I think the date, 26 June, is incorrect.

PN209

SENIOR DEPUTY PRESIDENT KAUFMAN: Yes. That is as I understand the evidence, yes.

PN210

MR PARRY: Yes. Mr Sadlo completed that form and I think the evidence was it was forwarded to head office in Sydney. Now, one of two things happened, one of two things flow from this, firstly, it was never approved which meant it wasn't an extension agreed by the employer, that is number 1. Now, in that event, what flows is that Mr Lloyd still has his contract finish date, being 3 July. The second thing that flows is that it was approved. If it was approved, in my submission, it was agreed between the employer and the employee that there would be a new date for completion of the period of engagement of employment.

PN211

If the first, in my submission, there has been no extension agreed, if the second my submission is that it still remains a contract for a fixed term. Now, Mr Clarke is in a different position. He is in the second category in effect, there is no dispute there that he was engaged for a 6-week period, there was an agreement reached that that 6-week period would be extended and there would be another 6-week period making a total of 12 weeks.

PN212

Now, in my submission as I have submitted already, that is either an agreement for a new contract or it is an agreement to vary the old contract within its terms. In either event the second 6-week period was a contract for a fixed term. Now, I think I referred earlier to two authorities of the Commission, the first is the Trigar authority that I have already handed up, the second is Qantas Airways Limited, a decision of a Full Bench of this Commission dated 9 June 1998, print Q1482, and I also have copies I can hand up to the Commission and to Mr Llewellyn.

PN213

Now, this deals not in a direct sense with this concept of extension but more so the possibility of there being an extension. This was a decision which dealt with Qantas apprentices. It was a decision of the last President that Qantas apprentices were not employed on fixed term or contracts of employment for a specified period of time. Now, the first argument raised was that an apprenticeship contract could be varied during its terms, and there was not a specific unambiguous identification of a contractual completion date.

PN214

Now, unfortunately, this is in the days when there wasn't paragraphs. On page 3 of 16 the first major paragraph there the Vice President, halfway through that paragraph, based on that assumption he found that:

PN215

Because the contract did not unambiguously identify the contract or completion date the contracts were not for a specified period of time within the meaning of regulation 30B.

PN216

This conclusion was based on the potential for the length of an apprenticeship to be varied during its currency. Then he set out a couple of ways that could happen, it could be varied by the vocational training and there was also a requirements that unpaid absences and worker's compensation had to be made up and there was the possibility with the apprenticeship being varied, suspended or cancelled by the Vocational Training Board. Now, moving through the decision over on the next page, page 4 of 16, the second paragraph makes reference to conduct and representations and reasonable expectations and about people continuing in employment.

PN217

I only take the Commission to those observations there because there is some of a similar flavour in this case of these discussions between these two applicants and Mr Sadlo on site about their expectations and so forth. So similar considerations applied. At the bottom of page 4, heading: Were The Respondents Engaged Under Contracts Of Employment For A Specified Period. Page 5 of 6 the Vice President, the first paragraph, he assumed that the contracts of employment were for the duration of the apprenticeship and he said that:

PN218

I didn't unambiguously identify the contractual completion date.

PN219

The Full Bench concluded he was wrong, the period of apprenticeship was specified and the possibility of the intervention didn't alter that view. Now, the Commission has set out, as it generally does in these cases, a slab out of the Umbakumba case. Halfway through that and particularly about the eighth line down it says:

PN220

A specified period of time is a period of time that has a certainty about it, a contract of employment for a specified ...(reads)... by a term of the contract, either by the contract stating definite dates or -

PN221

and this is relevant -

PN222

by stating the time or criterion -

PN223

and I emphasise the word "criterion" -

PN224

by which one or other end of the period of time is fixed by stating the duration of the contract of employment.

PN225

We say of course the criterion here was not an uncommon one, that is that the people could agree to another date. This has to be contrasted, as von Doussa J noted, with what he deals with in the paragraph below that, the term:

PN226

If the terms of the contract of employment, instead of identifying in this manner the period of time during which ...(reads)... contract is made the contract will be for an indeterminate period of time.

PN227

In this case we say there was a fixed period, it wasn't until some future event, it was only in the event that agreement was reached could the contract be varied. The Commission then deals with these possibilities of variation, the possibility of extension of the apprenticeship. It then goes on and deals with the detail of the contract and at the bottom of page 9 again there was this debate about whether people were going to get further work, at the end of their apprenticeship whether they were going to get another job. Mr Buchanan, halfway through that bottom paragraph, contended:

PN228

The contract was for an apprenticeship of 4 years, containing at the highest an undertaking to offer employment ...(reads)... operational requirements and a successful completion of the indenture.

PN229

We think this construction is correct, so undertakings about new contracts don't change the status of the contract and without going through the detail of the next parts on page 12, again the Full Bench deals in the second paragraph of evidence of Mr Fetsis's subjective belief. The Full Bench said of little weight because there is a comprehensive written contract and his beliefs are set out, again it is not evidence that the employment was for a specified period.

PN230

With Mr Hennessey, again what you are told about what is going to happen at the end of the contract for your subjective understanding don't affect it. Now, finally, and it is on page 13 of 16, and this deals with what happens when you reserve a right to give a job, and it is about common evidence and it is the third paragraph down, halfway through that:

PN231

When taken with the evidence of statements made to the respondents about their job prospects there is not ...(reads)... contractual position and entered into new contracts for indefinite employment.

PN232

Now, it is that proposition that is central to an assessment of whether a contract is fixed term or not, during that people waive their contractual rights and a contract becomes one of indefinite period then in my submission that is a different position. We say that didn't prevail here. Now, simply to return to Trigar's case, there was debate here about renewal for a further term of 12 months and various submissions were made in paragraphs 4, 5 and 6 and it was submitted by the appellant in paragraph 5 that:

PN233

A contract is not one for a specified period of time because of the possibility that it might be renewed for a further term of 12 months.

PN234

It was said because of that possibility the contract does not ambiguously define the time in which the contract was to finish. There is then set out an extract from Umbakumba and then it is said:

PN235

We do not accept the proposition that the possibility of employment for a further fixed term alters the character ...(reads)... time and contemplates another contract for a further specified period of time.

PN236

Now, a number of things can be said about those observations, firstly, they were not particularly relevant to the case that was before the Commission; secondly, the concept of a contract making provision for the alteration of a date of completion would appear to suggest that the Full Bench had in mind the decision of Ashley J, that is if one enters into a new contract or varies a contract you are in substance making a new contract. Now, I draw that to the attention of the Commission, in my submission if it be the position, which I don't think it is, but if it be the position that the Full Bench there is suggesting that a contract which allows for variation of its terms by agreement is not a contract for a fixed term then, in my submission, that would be wrong.

PN237

In my submission, in any event, in the present case the contract that is before the Commission in the present matter has within it a provision that terms can be agreed. In my submission, that is in no sense an unusual one and it is indeed the position of contract law - - -

PN238

SENIOR DEPUTY PRESIDENT KAUFMAN: Indeed, is it your submission that if there was no such clause in the contract it could nevertheless be varied by them?

PN239

MR PARRY: Yes.

PN240

SENIOR DEPUTY PRESIDENT KAUFMAN: It would require a clause that says this agreement can't be varied during its currency to prevent it being varied, wouldn't it?

PN241

MR PARRY: Well, that is so. In my submission, contracts of employment are inherently variable things, they do vary. It would be an unusual contract that would prohibit the parties agreeing to a variation thereof. The present case doesn't do that.

PN242

SENIOR DEPUTY PRESIDENT KAUFMAN: What I am really getting at, Mr Parry, is that a clause that says this contract may be varied doesn't really add anything to the ability of parties to vary a contract like this in any event, does it?

PN243

MR PARRY: No, no. I would agree with the observations of your Honour. Now, those are the submissions with regard to fixed term. Now, the decision goes on and deals with the term of the agreement being for 12 months and there the - - -

PN244

COMMISSIONER O'CONNOR: Where is this?

PN245

MR PARRY: I am sorry, Commissioner, I have dealt with paragraph 27, then the Commissioner goes on to paragraph 28 and he says that:

PN246

An AWA forms part of and indeed may vary the contract of service between the employer and employee -

PN247

and that is probably correct. He then says:

PN248

An agreement such as this does indeed become part of the individual's contract and applies for its term.

PN249

Well, he then goes on and talks of the term of the agreement being for 12 months in each case. Now, if he is there saying that somehow there is an employment relationship constituted for a 12-month period in my submission that would be incorrect and inconsistent with the instrument. The AWA does not constitute or create an employment relationship, it applies to the existing employment relationship. Now, he then goes on and deals with what they were told and what their understandings were.

PN250

Now, again, we would say as happened in the Qantas case that these understandings and what they were told are not found to be contractual in any sense but simply lead to the employees having understandings about what the employment was and what the future prospects were. We say the same considerations identified in Qantas apply. Again, paragraph 30 deals with the understanding of Mr Lloyd. Well, Mr Lloyd signed a contract in the terms that he did. His understandings, in my submission, don't take the matter any further.

PN251

He then refers in paragraph 31 to the authorities, that the arrangements did not constitute fixed term employment. Might I say that what happened during the case was that a number of authorities were handed up by Mr Llewellyn, I think that is paragraph 1668, and submissions were made on the basis of them. Now, those authorities, the Commission might recall there being a line of authority and some decisions which were to the effect that any right to terminate the contract at all made it not a contract for a fixed term.

PN252

If those are the authorities that the Commissioner was relying on, in my submission, those authorities were not consistent with Trigar or Qantas upon which I would rely and for the sake of total fairness, I'm not suggesting Mr Llewellyn didn't do that on purpose because Trigar was handed down about 3 days after the submissions were made on 16 November, Trigar was handed down on the - - -

PN253

JUSTICE GIUDICE: It seems to be the 1st of November.

PN254

MR PARRY: Oh, the first. Well, perhaps I am being critical of Mr Llewellyn.

PN255

JUSTICE GIUDICE: Well, perhaps you're being kind to him?

PN256

MR LLEWELLYN: Probably difficult to find over here.

PN257

MR PARRY: Yes. Perhaps it that came through the Internet very slowly. I'm certainly not suggesting anything like that. I'm just saying that the recent authority which, quite understandably, was not brought to the attention of early Commission and that just sometimes happens to all of us. In the outline I have made in paragraph (I) I've set out what we submit the evidence shows. That is, contract speaks - the employees speak of a 6 week period, a payment was agreed for that and I don't repeat the five dot points that I've set out therein. And we would submit that this was in both cases, a fixed term contract.

PN258

Now, as an alternative argument, it was advanced below and I advance it here, that the employment was casual. Now, if one looks at the regulations, 2B, we don't need to deal with the issue of 12-month employment or regular specified and so forth, as they appear in the regulations. It is simply a question in this alternative argument, that determining whether the employment was casual. Now, in a curious way, it's both casual and fixed term. It's - - -

PN259

JUSTICE GIUDICE: It's very curious.

PN260

SENIOR DEPUTY PRESIDENT KAUFMAN: It's very curious, yes.

PN261

MR PARRY: Well, in the same sense that if it's for an hour it's fixed term, presumably. Perhaps that's not the best point that I'm going to advance today. The basis of the casual argument is this, that is, these are employees that were told it's a 6-week period of work, they were paid, lump sum, they weren't paid annual leave or other leaves, sick leave, unclear. But the Commissioner seemed to form the view that the AWA didn't apply sick leave. Now, the authorities here are Toongabbie, it was relied on below. I hand up a copy of that to the Commission. Blue Suits v Toongabbie Hotel, Print S0282.

PN262

Paragraph 3 of Toongabbie dealt with the facts as found by Deputy President Duncan. There was a number of dot points on page 2, employment for a period of less than 12 months, hours varied, 4-day week. There was a roster. There was on-going employment. Notice of absence was required. He was employed as a casual, paid casual rates. There was no sick leave, annual leave or long service leave entitlement. And without dealing with the detail of the Decision, it basically says that the determination of casual is to be determined by Australian Standards. I think that commences at page 5, paragraph 13.

PN263

There was a submission made on behalf of the employee that regulation 30B(3) only applied to an employee who is engaged for a period of short, broken periods of employment over a period of 12 months. She also relied on the distinction drawn in a number of cases between a contract which expires at the end of each separate engagement and ongoing contract and those submissions weren't accepted. Now, there is - then deal with Blue Line Cruises. I don't take the Commission to that. I think it's about - in paragraph 14), the last paragraph [sic] in paragraph 14 on page 6. The Full Bench said:

PN264

It is apparent from the terms of regulation 30B(3) itself, as Mr Rogers submitted, a casual employee may be engaged by the one employer on a regular and systematic basis for a sequence of periods of employment during a period of more than 12 months. An engagement which involved regular work, the same or similar times each week is within a concept of casual employment contemplated by the regulations.

PN265

Paragraph 15 I don't deal with. Paragraph 16:

PN266

We have concluded Mr Graham is a casual employee. The findings made by the Deputy President indicate that Mr Graham was employed as a casual and paid casual rates, is not entitled to sick leave, annual leave or long service leave and whilst he worked a 4-day week, according to a roster, the hours he worked varied between 24 and 38.

PN267

And it goes on and deals with the award. As I've indicated there is no award here. Paragraph 17:

PN268

We have no doubt that Mr Graham was engaged on a regular and systematic basis for a sequence of periods of employment within the meaning of regulation 30B(3) and that but for the appellant's termination of his employment, Mr Graham would have had a reasonable expectation of continuing employment by the appellant. Nevertheless, it is impossible to conclude that he was engaged for a sequence of periods of employment during a period of at least 12 months.

PN269

And the appeal was dismissed. Now, we submit here, firstly both applicants commenced with ACM, signed contracts acknowledging that they were casual employees with ACM to be paid an hourly rate. As I said earlier, of course, they didn't take up duties, they were immediately put in employment with PR - PRC - PCR and they signed an AWA which - - -

PN270

JUSTICE GIUDICE: PRS, isn't it?

PN271

SENIOR DEPUTY PRESIDENT KAUFMAN: PVC?

PN272

MR PARRY: PVC. That's not particularly helpful.

PN273

JUSTICE GIUDICE: Pacific Rim Employees, PRE.

PN274

MR PARRY: PRE, yes, sir. I'm assisted by your Honour. Now, I've taken the Commission through the AWA. It contemplates regular periods of employment. I acknowledge that the AWA doesn't have the words, "casual" within it anywhere and also that the period of employment are not short periods, they are long periods. That is, 6 weeks. But that does not mean that employment cannot be casual and I simply say that expectations of ongoing employment are irrelevant to the assessment of whether employees are casual or not.

PN275

SENIOR DEPUTY PRESIDENT KAUFMAN: Now, your submission is that each 6-week period was a period of casual employment?

PN276

MR PARRY: Yes.

PN277

SENIOR DEPUTY PRESIDENT KAUFMAN: Doesn't that rather run contrary to the notion that one can have fixed term periods of employment? How can you have a fixed term period of employment if you categorise each term as being a casual employment?

PN278

MR PARRY: It's an alternative submission? It's very much an alternative one.

PN279

JUSTICE GIUDICE: It requires us to reject your earlier construction of the contract.

PN280

MR PARRY: Well, that's right. If the Commission said, I reject this as fixed term, it was much more casual, then I'll take the second if the Commission were minded. So it's an alternative submission. And I don't say anything more about it at present. Now, those are the submissions unless the Commission wants me to deal separately with the question of leave, I don't have anything further to submit at this stage.

PN281

JUSTICE GIUDICE: Yes, thank you, Mr Parry.

PN282

MR PARRY: If your Honours please.

PN283

JUSTICE GIUDICE: Yes, Mr Llewellyn, how long will your submissions take, approximately?

PN284

MR LLEWELLYN: That's a little bit difficult to assess unfortunately. They've just recently been re-done and I learnt the valuable lesson of backing up lap top computers on Thursday of last.

PN285

JUSTICE GIUDICE: I see.

PN286

MR LLEWELLYN: Probably an hour or so I would imagine, at least.

PN287

JUSTICE GIUDICE: Yes. Well, it's just a question of whether you would like a few moments before you commence or whether you - - -

PN288

MR LLEWELLYN: I probably would but I'd ask two questions at this point and it's mainly to get some advice off the Bench. I raised an issue both with the Commission and the appellant in this matter in relation to the lodgement of the appeal and their pursuit of it and seemingly the lack of. That doesn't seem to have been addressed by my friend, be that the appeal documentation was served on me 3 or months, I think it works out to be, after the appeal documents were said to be lodged.

PN289

Now, I understand to some extent that appears to be an error that's occurred in the Registry here as to the lodgement of the documents and the fact that they were lodged with a matter printed on them by the respondent's solicitors to indicate that they were actually another matter. But nevertheless, the lodgement of the appeal books and other documentation and ACMs pursuit of this - sorry, Pacific Rims pursuit of this appeal, seems fairly lacking over that interim period. Now, in terms of the public interest test, I'm not sure that that's been addressed particularly either for the leave to appeal, in any event. And I'm just wondering if those issues are to be addressed before I commence.

PN290

JUSTICE GIUDICE: Mr Parry, do you have anything to say about those matters?

PN291

MR PARRY: Well, I don't know anything about it. I can't assist anybody with that and I'm not sure what the argument is. I understand the appeal was filed in time and - - -

PN292

JUSTICE GIUDICE: Well, the regulations require documents to be served within a certain time and I think that's what Mr Llewellyn is drawing your attention to, that apparently, at least in once case, they weren't served for some months.

PN293

MR PARRY: I can only make inquiries about that. I don't have any instructions about any of that.

PN294

JUSTICE GIUDICE: Yes.

PN295

MR LLEWELLYN: Perhaps if I can - I haven't got a copy of the letter with me unfortunately, but perhaps if I just draw my friend's attention, the regulations of the Rules of the Commission, actually set out that the application should be lodged and the documentation should be lodged with it. And in that respect, the application that was purported to be lodged, which is tabs 1 and 2 in the appeal book that was eventually served in September. These things being faxed through to the Commission in May, would appear that the content of the appeal document was insufficient to lodge the appeal in the first place. Not to mention that it took from 8 May to 11 September to even attempt to serve any accompanying documentation. And it would seem to me that the appellant in this matter is not really serious about pursuing the appeal in the first event.

PN296

SENIOR DEPUTY PRESIDENT KAUFMAN: I don't think they would have brought Mr Parry over from Melbourne if they weren't serious about it.

PN297

MR LLEWELLYN: Well, they may have brought him over at this point in time but, I mean, certainly from May till September to lodge an appeal effectively, I know the Bench has the ability to extend the time and if that's the case, then we'll simply continue and I'll drop the issue. It just seems the issue hasn't been addressed at all.

PN298

COMMISSIONER O'CONNOR: Perhaps the lack of documentation that is required to be attached to an application nullified the application.

PN299

MR LLEWELLYN: Well that's an issue I'm not terribly sure of. In the terms of an appeal, you're required to lodge certain documentation within a time frame. And the fact is, it wasn't lodged.

PN300

JUSTICE GIUDICE: Yes. Mr Llewellyn, I think the best course is if you make what submissions you think appropriate about that. However, Mr Parry's now put the argument in full on the appeal, so I think it's appropriate that you deal with your submissions.

PN301

MR LLEWELLYN: Look, I'm happy to argue with the issues and if the Bench is happy to accept the application out of time, that's fine with me.

PN302

JUSTICE GIUDICE: Yes. I think - - -

PN303

MR LLEWELLYN: I make no issue one way or the other. It just seems to be an issue that hasn't been dealt with.

PN304

JUSTICE GIUDICE: Yes. Well, that's true and apparently Mr Parry is uninstructed so there's not much we can do except, I think, deal with it. But we'll hear any submission you want to make as to the consequence of those matters, Mr Llewellyn, but if you're happy for it to go ahead - well, perhaps not, happy, that's not the right description but I think that in the circumstances, we would normally extend time. There do seem to be some matters of substance and at least there was an attempt to file or to initiate the appeal within time.

PN305

MR LLEWELLYN: Thank you, sir.

PN306

JUSTICE GIUDICE: So perhaps we should go ahead and hear your submissions but could I just raise the question of the conclusion of this matter. Are there any - we had asked the parties to be here earlier today because of the fact that another appeal went off, the matter would have come on at 2 o'clock in the absence of that event. Do either of you have any time restrictions this afternoon?

PN307

MR LLEWELLYN: Not as a result of that. I was here all day because the matter that adjourned earlier this morning was one of ours anyway.

PN308

JUSTICE GIUDICE: Yes. All right, in that event, I think what we'll do is, we'll here you until quarter-to-one and take a normal luncheon adjournment to say, 2 o'clock, and we'll finish the matter this afternoon.

PN309

MR LLEWELLYN: Thank you, sir. As I said, I will apologise that this may be somewhat disjointed as I spent the weekend trying to recover what I previously had typed out. But in any event, if I deal with the issues as they appear in the grounds for appeal, and I guess by that stage the definition by which the contracts were seen to be before - or alleged they were fixed term periods, and the grounds filed in the appeal seem to state two positions.

PN310

Firstly, that the periods were the 6 weeks set out in schedule A of the Workplace Agreement and if you don't accept that argument, then it should be seen that the Workplace Agreement effectively had a maximum term of one year. Now, although it would appear from the submissions of my friend today, the second leg as set out in the application that the AWA effectively had a one-year term and that was the fixed term in any event, seems to be moved away from and the Bench's queries as they raised them under 170VJ would appear to deal with that issue in any event.

PN311

So, I take it at this point in time that the issue of the 12-month period of the AWA is no longer an issue and that is contained in relation to Clarke and for the purposes, Clarke v Lloyds appeal. Documentation is in identical terms. And that's 1A and the particulars set out in B is to the further - and in the alternative the contract of employment had a specified maximum term of one-year. And I put it quite simply, the evidence that was led and the fact that there were employees that had already gone past the year on the AWA and the fact that if someone does a simple calculation on a 6 and 1 roster, the 12-months would run you at 7.4 cycles of that roster so you'd be completing a 12-month term half way through a 6-week engagement, if I use the 6-week engagement period. But in any event, I think the Act covers that sufficiently in 170VJ that the Workplace Agreement continues past its term and I would say that would be unless it specified that it actually ended on that date, full stop, rather than just add a nominal expiry date of that period.

PN312

JUSTICE GIUDICE: Mr Llewellyn, when you talk about the cycles, does the contract provide for any - or the AWA and the other documents provide for any period between periods of employment?

PN313

MR LLEWELLYN: No, it doesn't. And to some extent, I think, and that was also relevant in terms of the finding of Commissioner Laing, is that, and I think my friend contends if one looks at the AWA, and the Bench has been taken somewhat through it, the AWAs were more written for detention officers rather than cooks. And particularly if one goes through PL3, which is the AWA, and in particular, reference to clause 11 where it sets out that you must be a current employee of ACM, the employee must be a gazetted officer and various conditions for the Workplace Agreement effectively to apply.

PN314

So, it would appear to me what's occurred is that ACM or Pacific Rim have simply used an instrument they were relying on for other purposes to get the terms and conditions of cooks. I mean, I guess one of the interesting parts in terms of that contract as it relies to whether it specifies things for leave and what have you, is more particularly in 11.2.6 where it sets out that:

PN315

Pacific Rim and the employer agree that Pacific Rim will make payments to ACM to ensure full continuity of leave and superannuation entitlements where applicable as if service with Pacific Rim under this AWA were serviced with ACM.

PN316

So it's a fact that it sets out for at least the employees that are employed under the terms and conditions of this AWA, there leave payments will be paid to ACM. So it does actually allow for the payment of leave in terms of the Workplace Agreement. And simply, what I put that - - -

PN317

JUSTICE GIUDICE: But what is that leave?

PN318

MR LLEWELLYN: Well, it's a continuity of leave and superannuation. So it would the entitlements, I guess, they would accrue with ACM had they been with ACM.

PN319

SENIOR DEPUTY PRESIDENT KAUFMAN: Is it doing no more than saying that for the purposes of the break from ACM employment that the accrual of entitlements with ACM will continue and Pacific Rim will contribute towards the - - -

PN320

MR LLEWELLYN: Will make the payments, effectively. So, in effect, it's not incorporated in your salary, we're going to make the payments for you.

PN321

SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, but isn't it in effect saying that the employment with ACM won't be considered to have been broken by the absence of the person whilst working for Pacific Rim?

PN322

MR LLEWELLYN: Essentially that's correct and maybe perhaps in hindsight it may have been better to have brought some documentation - or got some documentation, I should re-phrase that, in terms of the relationship between ACM and Pacific Rim because as you go through the documentation that was presented in the hearing, certainly it's difficult to ascertain who was actually giving instruction. Whether it be ACM or whether it be Pacific Rim. Now, of course if the employment - Pacific Rim is a separate and distinct company, as my friend put, then obviously any direction they receive from ACM is meaningless.

PN323

And it's worth noting and probably I should answer one of the questions that was asked of my friend earlier, whether either of the applicants were employees of ACM and the submission I make on that is simply that, they weren't and could not be. And there is evidence to the effect that, and unfortunately I can't point to it immediately, but I will find it, in terms of whether they actually performed any work at all for ACM. And the evidence was, they didn't. Neither did Mr Sadlo for that matter. Only Mr Sadlo's evidence, he couldn't even recall what he signed with ACM because it was of no consequence to him. It was simply a paper exercise to enable him to get employment with Pacific Rim. And that was effectively his evidence.

PN324

SENIOR DEPUTY PRESIDENT KAUFMAN: And what's the significance of that even if that be the case that they were not employed by ACM?

PN325

MR LLEWELLYN: Well, my friend seems to rely on it in terms of his submissions that they knew they were casuals with Pacific Rim because they signed a contract with ACM. Albeit that that contract didn't apply under the terms of the Workplace Agreement.

PN326

Yes. I didn't understand him to be putting the argument on that basis but maybe I'm misapprehensive - - -

PN327

MR LLEWELLYN: Well, I was just going on the written submissions he provided that both applicants, and I'm reading from 9E:

PN328

The Commission does not examine the creation of terms of the engagement relevantly both applicants signed a contract with ACM, exhibit PL2, as a casual cook. Accordingly, each were employed as a casual employee of ACM.

PN329

Now quite frankly, they weren't. As my understanding of the law in relation to the formation of a contract of employment, there are three things that needed to be there. One's the offer, the second is acceptance and some form of kind. And in this case, neither Clarke nor Lloyd fulfilled that 3 point definition. As a matter of fact, in terms of the offer and acceptance, the offer and acceptance document doesn't even appear to be signed by ACM as accepting that they were employees of ACM. And that's the evidence that's before the Commission. So, the evidence of them being casual cooks is just a nothing. There is nothing there. There is no employment contract that existed and non that came into existence. They were simply employees of Pacific Rim.

PN330

And that's where some of the problems started, if you like, that the fact that a contract that was - sorry, that an AWA that was being used, was a document that was never have meant to apply to cooks. I mean, right throughout it, I mean, our submission is that simply that if one looks at the - or what would appear to be the relationship that develops throughout the documentation, is that the reason this document for Pacific Rim came into existence, is to ensure that employees of ACM had no comeback if they were terminated from Curtin Air Base. Purely and simply.

PN331

And when one asks the question what happens to an AWA when the employment contract is severed, does the AWA continue in any event even though there's no longer an employment contract. Does that mean when a fresh employment contract is brought into being that the AWA comes to life again. I mean, the Act doesn't seem to say anything about it. So does that mean that once I've signed an AWA, if I do it for 3 years and I'm terminated and come back in 12 months time, I've still got the same AWA, albeit under a different contract of employment.

PN332

So, quite simply, I think, in terms of when one examines the purpose of the AWA, the purpose of the AWA quite clearly is to remove the rights of ACM employees to pursue any dismissal applications or anything else against Pacific Rim. I mean, the fact that the Pacific Rim contract, I think you'll find, is actually signed off on and witnessed by ACM employees. So, that's where the first problem started and that's I think, the problem that confronted Commissioner Laing when he had a look at what was happening.

PN333

So if you then went to have a look at the evidence as it was adduced from various persons including witnesses on behalf of Pacific Rim, that being Mr Sadlo in particular, Mr Geel, I think it was pronounced but it's spelt, G-e-e-l, and a Mr Shynn, and that's spelt, S-h-y-n-n. And also the evidence of Mr Clarke and Mr Lloyd which were important in our view in terms how Commissioner Laing came to his conclusion as to what the situation was.

PN334

Now, the authorities, in terms of whether employees are or are not fixed term employees are fairly well known. And in particular in relation to that of Lloyd and Clarke, and indeed, the other employees and it is probably worth having a look at some of the evidence. Now, Commissioner Laing in his decision accepted the fact that Mr Sadlo led employees to believe that certainly he had a right to hire and fire, albeit that Mr Sadlo in his evidence was fairly emphatic that he didn't have any of that ability.

PN335

But if one simply goes through that evidence, and it involves discussions and for example, appearing at 161 which is the cross-examination of Mr Clarke by Mr Lucev at that stage and it was where - and it follows where Mr Clarke was actually being asked to recall what the words were and then on instruction from the Commission, he was asked to recall exactly what they were and the fact that he was actually allowed to swear in the Commission, effectively. And at 161, he said, "Yes, that's right. Okay," and that was in response to Commissioner Laing:

PN336

Wolfgang Sadlo said as long as you don't fuck up, you're here, mate.

PN337

And it was said quite regularly and that was a saying of his. And that's essentially similar to the evidence that Mr Clarke gave in his witness statement, is also similar to the evidence of Mr Lloyd in his witness statement in that that facts were either that Mr Lloyd already had a good job working cycle work at Argyle on a 2 on, 2 off, roster where he went up for a period of 2 weeks followed by a period of 2 weeks off. Now, in that case, Mr Lloyd's evidence was that he wanted to know if Mr Sadlo, what potential he had to maintain a position and how long the job was to go for. And essentially, it was the same, as long as you do your job properly and I'm happy with you, you'll keep coming back.

PN338

Now, that thrust seems to have applied right throughout the evidence of all of the cooks that were called to give evidence before Commissioner Laing. Both of the applicants and also the other cooks. And it goes through at 164 where Mr Clarke was asked:

PN339

And you understood because Mr Sadlo told in fact that nothing up here is permanent, had he not?---No, he didn't.

PN340

It's the case is it not, Mr Clarke, that Mr Sadlo had no ability to hire or fire?---He repeatedly said, "I have the power to hire and fire and if you don't fuck up, you're here - you're in mate, for the duration."

PN341

And that seems to be the thread that's gone through everything and in terms of Mr Clarke in particularly and this evidence wasn't contradicted in terms of his witness statement and it's at 9 on his witness statement, which I think in the appeal book is at tab 12, where Mr Clarke's evidence was that he was employed by Mr Sadlo. Mr Sadlo effectively put that - it was really Mr Thomas who did all that, however, Mr Clarke's evidence which wasn't contradicted was that Mr Clarke had no contact with Mr Thomas what so ever. And effectively he got the job within 3 days and that was following a conversation with Mr Sadlo.

PN342

So, clearly as far as Mr Clarke was concerned, the only person he'd come into contact that had told him he had a job was Mr Sadlo. There was no paperwork trail and nothing presented as far as any contract - any other contract with Pacific Rim other than the Workplace Agreement that was signed. Now, that went right through and Mr Sadlo, I think, eventually did concede that he had actually terminated one employee and he did say, by simply not providing him a flight back to site.

PN343
I'm just trying to find the reference, and that goes through at P1282 through to - sorry, PN1282 through to PN1285 where Mr Sadlo was actually being questioned by the Commission at this stage and he put at 1282:

PN344

On the proviso the paperwork, as you said earlier, was right, you also said in your evidence that in answer to one of the questions that you were in a position of telling people that they wouldn't be on the next cycle, did you exercise that right?---Yes, I did once.

PN345

And on what basis was that?---The person concerned was not very satisfactory in the job. When their 44-day contract was completed - in fact they'd worked an extra 10 days extended for our benefit, and I told him then that he would not be returning.

PN346

Now, certainly in that case and that occurred while the applicants were on site, it would indicate that Mr Sadlo had certainly at that point in time, at least exercised some power to decide somebody wasn't going to return to site. Now, if you go through all of the evidence and all of it deals with and probably the most relevant comments that are made in these terms, and this is also a common thread throughout the evidence, was that - and this is Mr Sadlo on cross-examination where I put to Mr Sadlo:

PN347

I put to you Mr Lloyd approached you about how long he would be at Curtin Air Base, he wanted to make up his mind whether he would stay or leave from Argyle?

PN348

And Mr Sadlo's response was:

PN349

And I told him the initial contract was 44 days. As to how long the centre was going to be open and how long there was going to be work, that was anyone's guess.

PN350

JUSTICE GIUDICE: What paragraph is that?

PN351
MR LLEWELLYN: That's at paragraph PN547. And that thread goes right throughout all of the witnesses including the respondent's witnesses as to what they understood was to occur. For example, if one looks at the evidence of Mr Geel, Mr Geel originally signed a statutory declaration, which I think from memory, is at around about - - -

PN352

JUSTICE GIUDICE: It's in tab 27 of my appeal book.

PN353

MR LLEWELLYN: 27, that's correct. And I should correct the spelling - oh, no. It is spelt right. Sorry, it looked like an, A, in his own handwriting, I was looking at Shynn. Mr Geel's first - oh, his statutory declaration which was initially put into evidence, a copy of which is at tab 27, then I dealt with Mr Geel in cross-examination:

PN354

Right, so you just do 6 weeks, have a week off and come back?---Correct, sir.

PN355

SENIOR DEPUTY PRESIDENT KAUFMAN: What paragraph is that?

PN356
MR LLEWELLYN: Sorry, PN1132.

PN357

SENIOR DEPUTY PRESIDENT KAUFMAN: Thank you.

PN358
MR LLEWELLYN: And I'm moving on from PN1132 down to PN 1135:

PN359

So you just do 6 weeks on have a week off and come back again?---Correct, sir.

PN360

And do you do that by nature of the fact you're given a facsimile that says you're due out of this day and due back on that day?---Correct, sir.

PN361

No one's actually said to you that you have another contract each time you come back?---No, sir.

PN362

Now Mr Geel, does that describe ongoing employment?---No, sir because the situation is that we can all be terminated at any time the company sees fit.

PN363
Now at that point, and this is at paragraph 1136, to be fair, he said that as far as he was concerned, "We are just casually employed." However, I will deal with that shortly again in terms of re-examination by Mr Lucev. At PN1137:

PN364

Right. You just keep coming back because they tell you you can come back?---Yes, sir.

PN365

And you say you were employed on contracts of 44 days, that was the only initial contract, wasn't it?---That's correct, sir.

PN366

And it goes on at 1139:

PN367

All others have just been - you have advised that you come back in 6 weeks and then have a week off -

PN368
and he now points out to me that at that stage it had changed now they were having 2 weeks off between the 6 weeks. Mr Geel also goes on at PN1151, where it was put to him:

PN369

All right, and who has told you since then that each subsequent period is only a contract for 44 days?

PN370

And his response was:

PN371

That is an ongoing thing, sir.

PN372

He was asked again:

PN373

Sorry, what was that?---An ongoing thing, sir.

PN374

I am not sure who said what - did he say because I didn't think I would have misheard it three times but:

PN375

Was that an ongoing thing, was it?

PN376

And he said:

PN377

Correct, sir.

PN378

No-one from the company has told you that it is 44 days each time?---Not by Pacific Rim, sir, well, that it was only the first initial contract as I - - -

PN379

"Well, then" - and he adds then for Mr Geel:

PN380

It was only the first initial contract as I stated before.

PN381

JUSTICE GIUDICE: But, Mr Llewellyn, at the end of paragraph 429 he did seem to accept that it was up to Pacific Rim to decide whether to have them back or not. Is he not there referring to each period of 6 weeks?

PN382

MR LLEWELLYN: He may well be - sorry, 1129?

PN383

JUSTICE GIUDICE: Yes. The last two sentences.

PN384

MR LLEWELLYN: Well, essentially, it goes to whether there is sufficient work there. If one reads through his response at 1129:

PN385

Like before, we have 1240 people approximately to the best of my knowledge and numbers have dropped significantly. I believe, to the best of my knowledge again, we are now harbouring around 550 people.

PN386

Now, obviously, if the work is not there the company will move not to bring people back to do it. The question is what that does, whether it is a termination unilaterally or whether it is simply a case when business starts to drop off in a particular area - although that is hard to imagine business dropping off in this particular area at the moment.

PN387

COMMISSIONER O'CONNOR: It could in Australia.

PN388

MR LLEWELLYN: Sorry?

PN389

COMMISSIONER O'CONNOR: It could in Australia.

PN390

MR LLEWELLYN: Well, it is in Australia, definitely at the moment but at one stage it was the biggest growth industry in Australia. But it would seem to me that it is predicated by the fact that the work is reducing and on that basis they may not be brought back and my submission on that would simply be that is no different from any other company that reduces work, it has to look at the number of employees it has employed. The issue is whether they are discrete contracts, as my friend puts out, for a 44-day period or whether these employees, simply because the Workplace Agreement didn't fit were given different understandings to ACM employees.

PN391

Certainly, in relation to detention officers, they simply went up there, they did 6 weeks and then went back to where they worked and the evidence quite simply is in terms of the cooks, they went up there and worked and then they went home and had rest and recreation, then they went back there and worked again and had rest and recreation. The issue is who approved all that and whether it was by agreement and with whom. Now, the respondent in the principal application of the dismissals or the jurisdictional issue made a point of going to the fact that Mr Sadlo didn't have any of that power.

PN392

The question would be then who from Pacific Rim was doing it and my submission in respect of that, there is no evidence before the Commission that anyone from Pacific Rim approved anything, all of the documentation is from Australian Correctional Management and their management team. So the question would be who from Pacific Rim agreed to any contractual extension if there were some, who had the authority to do it. Now, in terms of Mr Clarke, his evidence was simply that Mr Sadlo was having difficulty with the roster and he said: look, I will work for another 6 weeks if I can so I can have 2 weeks off, because 1 week off at a time is not long enough to go and spend time with my family.

PN393

So he arranged his leave so he could have the 2 weeks R & R rather than 1 week's R & R. Now, there is no documentation to say that was approved by anyone at Pacific Rim. As a matter of fact the only documentation that was eventually brought forward was some months later and it was attached to Mr Sadlo's statement at WS4, which is effectively an instruction saying: you won't do that again, there will be no 12 week contracts.

PN394

JUSTICE GIUDICE: Mr Llewellyn, I am not entirely sure what your argument is on this, are you submitting that Mr Parry's construction of the AWA is wrong or are you submitting that the AWA doesn't really set out the terms of what in fact applied?

PN395

MR LLEWELLYN: Well, the AWA in relation to the cooks, and I guess I am setting out the difficulty that Commissioner Laing appears to have had, that effectively the AWA, albeit I have some doubts whether this was validly entered into in any event, I don't think that is an argument for here but the terms of the AWA simply don't fit with cooks. That can be demonstrated in any number of provisions, I mean the prerequisites that are in clause 11, for example, the cooks don't fit it.

PN396

JUSTICE GIUDICE: No.

PN397

COMMISSIONER O'CONNOR: The title says it's an Officer's Workplace Agreement.

PN398

MR LLEWELLYN: Pardon?

PN399

COMMISSIONER O'CONNOR: The title says it's an Officer's Workplace Agreement.

PN400

MR LLEWELLYN: Correct. Even if I accept that that doesn't apply, and I mean I think it has been conceded, the argument that the 12 month term of that is not a fixed term contract, even if one then looks at the 6 weekly periods what were the employees led to believe by those persons they thought had authority, and that was Mr Sadlo.

PN401

JUSTICE GIUDICE: But isn't a difficulty with that argument - I may be wrong about this but I think it is a difficulty for you - that two employees, the two applicants, read and understood apparently the AWA and signed it?

PN402

MR LLEWELLYN: Yes. The evidence from the applicants were that they understood they signed it for an initial 44 days, they were only going up there for 6 weeks and that was going to be the end of it. However, Mr Clarke's evidence was that when he approached them and said: look, I will stay for another 6 weeks to help you out, I don't have a problem with that, you are having trouble with your roster I will sign a new contract of employment, we will have a new agreement, he was told he didn't need to. He was also told that as long as his work performance was up to scratch he would continue coming back. Now, that doesn't describe a fixed term contract.

PN403

JUSTICE GIUDICE: It could describe a series of fixed term contracts, couldn't it, that the next contract, if you like, was dependent on satisfactory performance?

PN404

MR LLEWELLYN: Well, I suppose it could describe that, it could also describe what in effect is cycle work.

PN405

JUSTICE GIUDICE: Yes. I understand the broader context, and this is certainly a very unusual situation, but I suppose as I say one of the problems is that they have signed an agreement which says how these things are to operate and on one view of it most of the things you are referring to could be construed as consistent with that agreement. That just seems to me to be a difficulty. Now, that might also raise some questions about Mr Parry's construction of the document itself, whether there are some things in it which you think he has misconstrued.

PN406

For example, the critical issue of the periods of employment of 44 days which he says the AWAs prescribe that that is the way the system is, that there will be 44-day periods and he says: well, your clients, the two members have signed that document, people generally should be held to their agreements. I think that is the case that is put against you.

PN407

MR LLEWELLYN: I think the other thing to look at is that if you look at varying awards that have cycle work, which are all documents in the Commission, but for example particularly in the oil and gas industry where I have probably had the misfortune of being very familiar with, is that they all provide for periods of work of 2 weeks on and 2 weeks off. Does that make them fixed term? The 2 weeks off are not paid, the money is earned in the 2 weeks on cycle.

PN408

I think Commissioner Laing rightly points out there are a number of agreements in terms of the same industry, one that springs to mind which was registered for him more recently was the Buffalo FPSO Agreement where the employees are employed for 3 weeks on and 3 weeks off, they get no annual leave or anything else. The 3 weeks off are not paid, they are paid for the 3 weeks on duty. If they are called to work on their 3 weeks off duty they get paid overtime, does that make that fixed term? It simply describes a series of cycle work, which is so many days on and so many days off.

PN409

The issue in terms of what has occurred in this contract and why it probably was somewhat difficult is that it describes a period of 44 days on and then for detention officers you will simply go back and start work where you were before. Now, for cooks, that doesn't apply because they had nowhere to go back and start before, they had no work with ACM, they simply worked for Pacific Rim and what they were doing was going back home for a week and then coming back to work and there was a roster put up, and by any construction of the roster, in particular in Mr Sadlo's case, Mr Sadlo's evidence was he put a roster up for some 3 months in advance.

PN410

JUSTICE GIUDICE: Have we got the roster?

PN411

MR LLEWELLYN: No. Unfortunately, it was not available in evidence, but Mr Sadlo's evidence was that he actually drew up the roster some 3 months in advance although some of the employees seemed to think it was only drawn up 2 weeks in advance, but Mr Sadlo's evidence was that he did the roster up 3 weeks in advance and I can't take you to the reference immediately, I don't think it is one of the ones I searched out last night, but I think his evidence was he had the names and the roster put up and his evidence was: the names didn't mean anything, I could have put A, B, C or D because if one of the employees decided not to come back we had to go out and get another cook. Now, in his evidence at that point in time, he seemed to be putting emphasis on the cook's decision not to come back not Pacific Rim's.

PN412

SENIOR DEPUTY PRESIDENT KAUFMAN: Doesn't that to some extent support Mr Parry in that the contract came to an end and either side could decide not to renew it?

PN413

MR LLEWELLYN: Well, I guess I can terminate my employment at any time I like, does that make it fixed term. I mean if I have worked in cycle work and get another job on my time off and decide that I don't want to go back there and I can give notice. Simply, if that is the case, then no it doesn't support Mr Parry because it implies that Pacific Rim can give the same notice. Indeed, if you look at the Workplace Agreement in schedule A, and I guess this is where I draw a distinction from Mr Parry, whether it does provide unilateral ability to terminate, if I advise you I am coming back, so we have agreed - if I use the construction that Mr Parry wants to use, and that is that it is for discrete 44-day periods then one would have to ask the question: how does the cancellation fee come into being.

PN414

So if I had come along to you and said: you now have a contract for another 6 weeks and within 48 hours of your going changing my mind and cancel your contract of employment unilaterally I pay you 400 bucks. Now, to me that is a unilateral right to terminate a contract, I don't have to give you a reason, it doesn't have to be for misconduct, it doesn't have to be for anything, I just make a decision you are not coming back. Now, I could make that decision at any time, so if I have come along and said - and if I use Mr Sadlo's example of: I have got a roster going out 3 months and Mr Lloyd is on the roster for a 3 month period, he has gone off on his R & R and I ring him up more than 48 hours before he is due to come back on site I don't pay him anything; have I cancelled his fixed term contract, if it is a fixed term contract or have I simply advised that I have terminated him without notice.

PN415

SENIOR DEPUTY PRESIDENT KAUFMAN: Before he starts work.

PN416

MR LLEWELLYN: Well, I have still got a contract form, when did the contract finish, did it finish at the end of the 44 days or was there an extension by virtue of the fact that I have placed you on a roster that says you will work for the next 6 weeks, have the week off and come back for 6 weeks, is that now a 44-day fixed contract or is it now a 88-day fixed contract, 88 plus the intervening week. Where does the fixing of the contract stop.

PN417

Does a roster that is simply open-ended imply, together with the comments from Mr Sadlo, as long as you do your job well then I am happy, you will have a job; does that fit with fixed term employment. The comments on the camp of how long we will be here for, as long as you have got refugees you have got a job and at that stage, as I saw and I think the expression everyone wanted to use was romancing - or Mr Lucev wanted to use particularly, was romancing the stone, an expression I am familiar with in a wet mess but in any event it would seem that the views of the employees at that stage, as shown in the evidence, was that it is anything from 2 to 5 years, depending on how many refugees we get.

PN418

COMMISSIONER O'CONNOR: But go out and recruit a few, wouldn't you, to keep a job.

PN419

MR LLEWELLYN: Well, I won't make a comment on who might have owned the boats, but I mean when one looks at the authorities in relation to fixed terms contracts, and I know I am going to get this wrong but it is Umbakumba I think is the pronunciation that I have learned from my friend this morning, and also in Cooper v Darwin Rugby League. It would seem in the circumstances that were described in the evidence, not only the evidence of the applicants in the first instance but also the respondent's witnesses in Mr Sadlo's evidence, that the contracts of employment for the cooks at least were ongoing as long as they kept Mr Sadlo happy and that he made a roster to that effect.

PN420

Quite clearly, ongoing as long as we get refugees is not a fixed term, that is at a point that will be determined some time in the future depending on the amount of work and I think the submissions I put to Commissioner Laing at that stage is that is no different from any other company. If I have got sufficient work to maintain 100 employees I get to keep them, if my work cuts in half I tend to have to put people off. I mean if we want to go through and examine the AWA more specifically, how do you vary the contract. My friend says you can only do it by agreement but that is not what the AWA says either. 18.3 says:

PN421

If there is any dispute or failure to initially reach mutual consent the dispute will be resolved in accordance with 7.1.

PN422

So my agreement is predicated on the fact, we go somewhere else and make a decision as an employee if I don't agree to the change. Now, that is at page 7 at 18.3. So we go back to 7.1 and find out what happens if I don't give my mutual consent and the company wants me to do something then we will go through the procedures, we will discuss it at the workplace level, either party may appoint another person to assist me and we go right through the mediation process until a decision is made. Now, whether I agree or not at that point seems irrelevant. The dispute procedure falls on behalf of the company, or sorry, if the process through the disputes procedure finds that the company is right then my consent to the change is null and void.

PN423

JUSTICE GIUDICE: Do you suggest that clause 18 goes to varying the term of the event?

PN424

MR LLEWELLYN: Well, it varies. I guess the terminology and it's where the terminology is a bet - well, it's either poor or it's intended that I can vary anything in the AWA from Pacific's Rim point of view. And if I don't get agreement then I can run it through the disputes procedure.

PN425

SENIOR DEPUTY PRESIDENT KAUFMAN: Well, you can only vary yours in the limits imposed by 18.1, changes in operational and so on. So do any of those permit variation of the term of the agreement?

PN426

MR LLEWELLYN: Well, let's then examine that and relate that back to the evidence in terms of 11 - you pointed to me, I think in 11.29 which was Mr Geel. If for example, and Mr Geel's example in that case we had 1240 and we now have 550 and that happened half way through a work cycle and the company came along and said: well, we know want to get - we're going to shorten your work cycle, you're only having 20 days up here this time because operationally we don't need you.

PN427

SENIOR DEPUTY PRESIDENT KAUFMAN: Are you saying that clause 18 would allow the employer to - an employee to vary that?

PN428

MR LLEWELLYN: Well, I think if you look at 18.1: Changes in Operational, Legislative and Other Flexibilities Within the Workplace to Accommodate Changing Business Needs and to Approve Business Efficiency. Why would I keep, if for example, and I've forgotten the ratio off the top of my head but if, for example, of 1240 detainees I needed 200 detention officers and 20 cooks, then at half that number I need half that number of people there. Why would I keep everyone there for another 2 or 3 weeks if I don't have to? Doesn't 18.1 give me the ability to say that operationally my requirements have changed?

PN429

One then looks at, if it can only be changed by agreement, what then is the purpose of 18.3? And I would submit to the Commission it would be extremely hard for me as an advocate to come to the Commission in that case and say: look, there's no work for 150 of the blokes up at Curtin but the contract says they're there for 34 days. So listen, they want to sit and watch TV for the next 3 weeks, the Commission shouldn't allow them to remove them or the mediator shouldn't allow them to remove them. Now, if I'm able to change anything for an operational requirement or to gain further flexibilities in the workplace to accommodate changing business needs, why can't I change it?

PN430

I mean, if you look at what's happened with the cooks in terms of the evidence that Mr - I think it was Mr Geel gave, they'd been working 6 and 1 rosters for 12 months, now they're working 6 and 2 rosters. Is that an operational change? For over 12 months they've worked 6 and 1 cycle. Now operationally the number's dropped and as I understand it there was some meeting that decided if we extend the amount of time off we can all have jobs for longer. Rather than reduce the number of cooks, we can reduce the number of hours we work effectively. Now that's a change done operationally, there's no new workplace agreement entered into.

PN431

So what does 18 mean - clause 18 mean in terms of the employees that signed it? I mean, in terms of whether I can terminate people in relation to the cooks one looks at the clause 16, the premature termination of the contract. What does 16.2 do to a cook that I remove and send back to his place of origin? If effectively terminates his employment because that is what happened with Mr Lloyd, half way through a 6 week cycle he was terminated.

PN432

SENIOR DEPUTY PRESIDENT KAUFMAN: Didn't Mr Parry say that he would have gone back to being a casual cook employed by ACN?

PN433

MR LLEWELLYN: Well, how could he be, he's never been employed by ACM?

PN434

SENIOR DEPUTY PRESIDENT KAUFMAN: Well, that's a dispute between the two of them.

PN435

MR LLEWELLYN: Well, the evidence is that Mr Lloyd and indeed Mr Clarke never performed any service whatsoever with ACM and I think that was conceded by my friend in his submissions. It's a fact that they never performed any service at all. Therefore how could a contract come into existence. Effectively it's a termination. I mean, effectively that's what happened to Mr Clarke as well. He was removed before the end of the 12 weeks that he was doing up there.

PN436

JUSTICE GIUDICE: I think most of the cases that have been concerned with this issue of whether a contract is for a specified period of time have involved determination. I mean, it's accepted that there's a possibility a contract will be terminated which is a contract of employment which is for a specified period of time but because of that fact it will not be within the jurisdiction of the Commission. It doesn't mean to say that there isn't a termination of the contract or indeed that there may not be a remedy elsewhere. But I don't think it really advances the case to say it's a termination.

PN437

MR LLEWELLYN: Well, in those circumstances though the termination is through the effluxion of time and that is at the end of when the contracts usually run to. I mean, if you examine - - -

PN438

JUSTICE GIUDICE: In some cases, yes. In some cases.

PN439

MR LLEWELLYN: I mean, obviously there would be circumstances and I think my friend goes through - - -

PN440

COMMISSIONER O'CONNOR: Did Mr Clarke, as I understand it or Mr Lloyd, extend their contract?

PN441

MR LLEWELLYN: Both did and that's one of the other points I was going to raise. I think that is particularly relevant in terms of one of the - - -

PN442

COMMISSIONER O'CONNOR: Determined in advance.

PN443

MR LLEWELLYN: Well, one of the earlier cases which was a decision of Judicial Registrar Murphy followed by on review Marshall J, which is Cole v Shire of Yarra Ranges. And perhaps if I can deal with Mr Clarke in relation to that in the first instance - - -

PN444

JUSTICE GIUDICE: Well, do you think you could deal with that after lunch, if that's a convenient time?

PN445

MR LLEWELLYN: Yes, that's fine.

PN446

JUSTICE GIUDICE: Yes. We will adjourn until 2 o'clock.

LUNCHEON ADJOURNMENT [12.48pm]

RESUMED [2.04pm]

PN447
MR LLEWELLYN: Thank you, sir. Before the luncheon break I actually made some submissions in relation to the rosters and what have you, that have been put up by Mr Sadlo. I did say at that stage I would find the reference in the transcript and for the record the reference in the transcript is at PN590 through to PN592 where Mr Sadlo sat out that he drew up the roster for the cook showing they were working 6 weeks on and 1 week off. And they could go and look at those rosters and they were about 3 months which means that they could go and see that they were rostered on for at least the next two 6 week cycles.

PN448

Now, in terms of that and in terms of what happened in relation to Mr Lloyd, as we deal with the issue of fixed term employment and it's effectively where this situation is not dissimilar to what occurred to some extent in terms of Cole v Shire of Yarra Ranges, which was a decision of Marshall J. I'm handing a copy of that decision up. By way of background Mary Anne Cole was employed by the Shire on a series of what was described as temporary contracts. And at one stage then filled, and it's the bottom of page 411 is the description that Marshall J relied on. She actually filled in, in a full-time in a substantive position following the resignation of a person on maternity leave. And she simply continued in that position on a full-time basis performing duties as she'd always performed until December - until, sorry, September of 1993.

PN449

Effectively - and this was a decision following the decision of Judicial Registrar Murphy on review and essentially what Marshall J found and it's at the bottom of page 7 of 11 as to the issue. And the respondents mistook the position that there was no clear - and this is the last paragraph on that page:

PN450

There was no clear letter of appointment for each period of employment at Healesville - - -

PN451

Which was the council she initially was employed with prior to the amalgamation.

PN452

The chronology reveals a period of almost 13 months when there was no letter of appointment governing the employment of Ms Cole, also no attempt appears to be made to examine the real position concerning the events of 8 April.

PN453

Now essentially in terms of that decision the issue was that effectively there was being a paper trail attempted to be created after the event. And to some extent that's a similar position to that which has applied in relation to Mr Lloyd. Mr Lloyd certainly was there and the evidence was that when he went back for his second cycle after his initial 44 day period he said: I wanted to extend. Now it was said that extension was granted by a letter on 19 April and it's contained in Mr Sadlo's witness statement and marked WS1. And that's at tab 24 of the Appeal Book.

PN454

And what we say is relevant in that that there are two things. First of all it purports to agree to an extension some 9 days after Mr Lloyd continued to work past the 6 week period - or sorry, some 8 days. The second thing which we say is relevant is that purported agreement doesn't appear to come from Pacific Rim. There is no documentation at all throughout all of the proceedings that indicate Pacific Rim agreed to anything as the employer. In all of the events, and if I took you to all the attachments you will all find that they are signed on behalf of Australian Correctional Management - Australasian Correctional Management, sorry. And in this case by Linguard who was ACMs Manager at Derby and in other cases by various human resource officers of Australasian Correctional Management.

PN455

But at no stage is there any paperwork to indicate that there indeed was any agreement reached with Pacific Rim as the employing authority. The real issue that that then relates to is if one examines the AWA as applied then how does these purported - my friend says an extension can only be granted by agreement, the contract can only be altered by agreement between the parties. The parties in this case being Pacific Rim Employment and the individual employees, irrespective of the fact that at 18 it says something different in the workplace agreement. But it would seem that to maintain cooks longer than a 6 week on 1 week off cycle, it required ACMs approval, who were running the detention centre or immigration reception centre.

PN456

Now that's not an agreement with the employing company given the submissions that my friend made earlier. And the same with Mr Clarke. The evidence was that Mr Clarke stayed for 12 weeks, he asked if there was a requirement to sign another contract to get agreement for the extra 6 weeks that he stayed and he was told: no, there wasn't. Now again there is no evidence before the Commission that there was any requirement to get an agreement to extend what is said to be a fixed term contract. The fact is that it was extended and there is no evidence of any agreement with Pacific Rim to that effect.

PN457

Now what we simply say is that fits well with the decision of Marshall in Cole, it also sits well with the authorities quoted in relation to the regulations as set out in - well, it's set out actually in Commissioner Laing's decision but also in terms of regulation 30B and that which sets down what the expression, "engaged in a contract of employment for a specified period of time", actually means. And that is in Umbakumba v Darwin Rugby League, Cooper and Darwin Rugby League. So quite simply if we look at that construction and what's occurred the respondent in the proceedings before Commissioner Laing couldn't provide any documentation to prove that there had in fact been any agreement.

PN458

And if you accept the evidence of Mr Sadlo, he didn't have the authority to make those approvals. Despite the fact that our contention is he obviously did because he employed at least from Mr Clarke's point of view, Mr Clarke was employed from him. But Mr Sadlo was very emphatic in his - not only in his witness statement but also under cross-examination that he didn't have the power to hire and fire. He could simply only recommend, but yet he made a roster 3 months in advance and on one occasion certainly he made the decision that a cook wasn't going to come back. And that was made with no reference to Sydney whatsoever.

PN459

But quite simply before Commissioner Laing there was absolutely no evidence that Pacific Rim had indeed improved any extensions. It was simply that the employees were up there working 6 weeks on, 1 week off, 6 weeks on, 1 week off. And all they'd been told is: as long as you do the job and we've got refugees this thing could be going forever. Now that's the facts as set out in the evidence, the transcript and indeed in all of the exhibits. And the only documentation that can be pointed to that has anything to do with Pacific Rim whatsoever is the actual AWA. And on the face of it the AWA seemed to apply that there can be variations made for various operational requirements and if you don't agree to that we'll do the disputes procedure and run through that.

PN460

It provides that albeit that I've contracted you to work 6 weeks on and 1 week off, and 6 weeks on, I could ring you up the week before and tell you you're not coming. And so terminate unilaterally the contract that I, if I use my friend's argument, the contract that I've just made with you. And quite simply put that does not fit with the contract for a fixed term. There is obviously more than an expectation in terms of the employees and the evidence points to the fact that the reason that was more than an expectation is there was a roster put on the board showing 3 months worth of work on a 6 week on 6[sic] week off basis.

PN461

In terms of the issue of casual employment and the allegation that the employment was on a casual basis, I think my friend has already pointed you the fact that the workplace agreement contains nothing in it that indicates there is casual employment. Certainly it doesn't purport to allow for leave however it does allow for - it also purports not to allow for leave to be included in the payment. And quite simply we make that assertion in terms of the document by what is contained in 11.2.6. And there is nothing in the workplace agreement that would then indicate that leave is indeed incorporated into any payment the employees were to receive.

PN462

As a matter of fact, further to that in terms of Mr Clarke, or actually sorry before I move on to that I should finalise one issue in terms of the authority my friend raised. The issue in terms of fixed term employment as it relates to the decision he's raised in Trigar where it seems to indicate, and to some extent I wouldn't disagree with it, that a contract of employment that was a fixed term nature that allowed termination for serious and wilful misconduct where the employee repudiated the contract, would still be of a fixed term nature.

PN463

Quite simply I can agree with that wholeheartedly on the basis that if it was the employee that repudiated the contract then there's no termination at the initiative of the employer, in a technical sense. But when one looks at what's happened in terms of the applicants in these - or the applicants in the main proceedings, the jurisdictional proceeding, the issue is this. My friend extends that further and I think he did in his submissions that in terms of what's contained in schedule A, albeit I think I've done to death the cancellation fee. The issue in terms of that arrangement could also include frequent or prolonged sick leave may result in termination. And I think his submission if I correctly understood it was that that also fitted quite comfortably in what occurred in Trigar.

PN464

Simply put, unless the Commission can look into the circumstances surrounding a situation where an employee was terminated for sick leave, for example, as is the allegation in relation to Mr Clarke's case. Then what my friend seems to say or purport to say is that the AWA can over-write what's in the Act in terms of the requirements of 170CK and the definitions given to temporary absence because of illness in relation to regulation 30C. And 30C simply goes to the fact that paragraph 170CK(ii)(a) of the Act:

PN465

An employee's absence from work because of illness or injury is a temporary absence if (a) the employee provides a medical certificate for an illness or injury within 24 hours of the commencement of absence. Or (2) such longer period that is reasonable in the circumstances or the employee is required by the terms of the award or certified agreement or State award or State employment agreement or an old IR agreement to (a) notify the employer of the absence from work and (b) substantiate the reason for absence.

PN466

It then goes on to set out effectively what a temporary absence is and that is:

PN467

If the employee's absence extends for more than 3 months unless the employee was on paid sick leave for the duration of the absence, or the total absences of the employee within a 12 month period, whether based on a single or separate illness or injuries extend for more than 3 months unless the employee is on paid sick leave for the duration of those absences.

PN468

Now, one finds it difficult to fit within that definition when you're only on a 6 week contract, prolonged sick leave on a 6 week contract can amount to 3 months. Now on that basis the document either purports to give you the right to terminate an employee's contract in contravention of 170CK and the definition given under the Act, or it envisages that your employment is for longer than 6 weeks because you wouldn't get within the 3 months. So we say on that construction Commissioner Laing is quite correct that at least in that provision I don't think that fits comfortably with Trigar at all.

PN469

The other condition and obviously evidence which is not before the - or was not before the Commission in the case is exactly what the code of conduct contains in it. But if one looks at this on the worst case scenario, for example one of the issues that would be said to be a repudiation of your contract by my friend I think would fit into the fact that if you're away from the base unauthorised is a repudiation of the contract. Now I fail to see how a single day absence of an unauthorised nature is a repudiation of the contract. And that would seem to be what Trigar is aimed at, is where you commit wilful misconduct that strikes at the heart of the employment relationship.

PN470

Now quite clearly this document contains more than simply what is set out in Trigar. Not only in terms of the cancellation fee but in terms of the sick leave and in terms of things like an unauthorised absence from the base. And, of course, what is contained at this point in time in terms of the code of conduct and the procedures of ACM is blind to the Commission because it wasn't put into evidence in the first instance. So we can't say exactly what rights the employer has gained under those terms to terminate the contract of employment.

PN471

In dealing just briefly in terms of the issue of casual employees, if I can move on to that and I've already covered to some extent that the AWA doesn't contain any provisions that indicates employees are casual. It does however by implication indicate that under the AWA you won't be paid for your leave. However by the operation of 11.2.6 we say it also indicates that the leave payment is not included in your remuneration as such. Now the schedule A sets out the remuneration for each period of employment. It then becomes to some extent an expression of, if you like, what the employees understood their terms would be because there doesn't appear to be anything from Pacific Rim other than the AWA.

PN472

Certainly from the evidence, Mr Clarke seems to have suffered under the perceived notion that he was actually entitled to paid sick leave. And the question would then come: how did Mr Clarke come to that view? Quite simply the evidence shows that Mr Clarke became ill while working at the base and went off work on or around I think 13 March, I think it was or April exact date?

PN473

JUSTICE GIUDICE: March.

PN474

MR LLEWELLYN: March. And then was taken from site around about the 21st, I think it was, or the 22nd. There then proceeded to be a plethora of documents that travelled between Mr Clarke and various representatives, it would appear, of ACM, dealing with the issue of his reinstatement to the position he had and dealing with the issue of his sick leave. And to some extent some of that is summed up in MC9, which is a letter from Grace Dolan, a Human Resource Officer with Australian Correctional Management, in a response to - Mr Clarke wrote to them about the fact that he wasn't getting paid sick leave any longer, effectively, and wanted to know why he didn't get paid sick pay.

PN475

Ms Dolan goes out to point out that Mr Clarke apparently is now a casual employee of ACM, albeit that he's never performed any work for them, and not entitled to sick leave:

PN476

In accordance with the workplace agreement you signed, frequent prolonged sick leave during a period of employment may result in termination of the workplace agreement.

PN477

The next line, we say, is relevant:

PN478

I understand that you were in fact paid the entirety of your contract even though you were on sick leave for the last 13 days.

PN479

Now, certainly that would indicate that Mr Clarke got paid an amount of money for the last 13 days of his contract while he was bedridden. Now, unless I'm mistaken, casual employees don't get paid when they're off work sick. And I think that's the conclusion my friend was attempting to draw. There is no paid sick leave. Well, quite clearly, Mr Clarke got paid for the 13 days he was off sick. What his question was with ACM is why he didn't continue to get paid sick leave when he wasn't fit to resume duty a week later? And what indeed happened to his employment? Now, that indicates on its face that Mr Clarke received paid sick leave.

PN480

The workplace agreement, on its face, doesn't purport to include payments for leave in the rate of pay. Now, in the absence of that and any other evidence, there is nothing to suggest that either Mr Clarke or Mr Lloyd were casual employees. They worked 6 weeks on, they had a week off. If they wanted longer than a week off, they negotiated that with Mr Sadlo, the manager, and managed to get extra time. But certainly for that 13-day period that he was off sick, he received payment. Now, it's a fact at the time of the hearing that he didn't get paid for any days after that.

PN481

Now, this is one of the points that I made earlier in terms of the documentation and who the documentation comes from, and if one goes right through Mr Clarke's correspondence backwards and forwards, all the people he's corresponded with, Leslie Rogers, for example, who was described by Mr Sadlo as a Human Resource manager at Australian Correctional Management. Grace Dolan, who was a Human Resource officer at Australian Correctional Management. And indeed, the final letter, which is Grace Dolan from ACM also.

PN482

There doesn't appear to be anything in the history file of these employees to indicate that anything at all came from Pacific Rim. Everything they have came from Australian Correctional Management and employees of Australian Correctional Management, which then leads to the question of where is the Pacific Rim management that were authorising or so-called authorising these additional contracts that my friend keeps claiming about? There is simply nothing. The other issue we raised briefly in the hearing, which I think bears some view and I think Commissioner Laing actually made some comment towards it, irrespective of his comment in relation to the AWA and how it got approved.

PN483

It would seem to us that in terms of what's occurred with these employees, if the alternative position is accepted and it purports to be fixed term contracts, then what was the purpose of the contract, when there seems to be nothing - I mean, the contracts are witnessed by ACM employees. ACM employees have issued the instructions. The managers of ACM have approved additional work past the 6 weeks that the employees were normally rostered on. What then is the purpose of having a Pacific Rim contract? And quite simply put, our contention is the only purpose is to avoid the obligation under sections D and E of the Act.

PN484

It's to provide a mechanism for Australasian Correctional Management for its own employees normally employed as detention officers at prisons, that if they send them up to Derby on a higher rate of pay and they wanted to terminate them, there's nothing the employee could do about it despite the fact they were already permanent employees of ACM. And quite simply put, it is our view that that's what the ACM - sorry, PRE, I'll get these initials right sooner or later - that the Pacific Rim Employment contract was designed to do.

PN485

Sorry, doing these things with acronyms with employers is almost as bad as PADRs and what have you and everyone that wants to call them something different. But certainly there can be - I mean, when one examines the Pacific Rim contract, what other purpose would the contract have? If it's an ACM manager that's giving you direction, if you're an ACM employee, why do you need to go to Pacific Rim, who purports to be the same people, giving directions? Whether there is a link between them in terms of who owns what as far as a corporate link is concerned, there was nothing put before the Commission and I don't have anything to put before the Bench as its currently constituted.

PN486

However, I think it's worthy to note to the Bench that that point should be made, that there is no documentation that purports to do anything from Pacific Rim for these employees, purely and simply. Unless the Bench has any questions of me, I don't intend to deal with the other issues in terms of the lateness. I accept that the Commission has the power to accept the application and if that be the desire of the Bench, I'm quite happy to deal with it on that basis. No doubt Anderson Lee will have a better idea how to file appeals in this jurisdiction now, but I'm not going to raise - I mean, I don't believe in technical arguments, so thank you.

PN487

JUSTICE GIUDICE: Thank you. Thanks, Mr Llewellyn, very much. Mr Parry, do you have any reply?

PN488
MR PARRY: Very briefly, your Honour. Firstly with regard to Mr Sadlo, Mr Llewellyn said he was employed by Pacific Rim. Now that, I think, was referring to a piece of evidence at PN661 where Mr Sadlo was asked: Who actually employs you, Mr Sadlo, is it ACM or Pacific Rim? And he said ACM. So you're not employed by Pacific Rim at all? No. But then that ignores the evidence that he gave in exhibit PR1 which was, in paragraph 2 in his witness statement:

PN489

I am currently employed as the Food Services Supervisor by Australian Correctional Management at the Curtin Immigration ...(reads)... to that I held the same position, but as an employee of Pacific Rim Employment Pty Ltd since November 30 1999.

PN490

So he was, Mr Sadlo was an employee of PRE at the relevant time. Secondly, there's been a couple of assertions made by Mr Llewellyn today from the bar table. One about meetings and reducing cooks and another one about views that he holds or that perhaps his clients hold about the reason for the setting up of the structures. Might I say that there's no evidence before the Appeal Bench to support either of those assertions. And finally, over the luncheon adjournment, I sought a copy of Jack Chia but was unable to obtain it. I did look up recent decisions of Ashley J and there was one, Hayley v The Public Transport Corporation, which is a very long judgment which doesn't seem to bear on this.

PN491

The Internet versions of the Supreme Court go back to 1998. This was probably 1997. I can't assist the Commission any further with regard to that judgment. The Jack Chia one is reported in 1992, Victorian reports. If your Honours and Commissioner please.

PN492

JUSTICE GIUDICE: Mr Parry, can I just ask you a question? Mr Llewellyn spent a bit of time on this issue of whether Pacific Rim was participating in the various arrangements that purport to be established by the AWA and you've answered that to some extent by pointing to Mr Sadlo's evidence that until 3 July he was an employee of Pacific Rim, but what about Ms Dolan? How does she fit into the equation? There are a number of pieces of correspondence involving her. She's clearly, or appears to be, an employee of Australasian Correctional Management.

PN493

MR PARRY: Sorry, your Honour, which - - -

PN494

JUSTICE GIUDICE: Well, they're attachments to - actually separate exhibits. MC5 is one. I'm sorry, that's from - - -

PN495

COMMISSIONER O'CONNOR: MC7 and tab 19.

PN496

JUSTICE GIUDICE: Yes. That's one of them.

PN497

COMMISSIONER O'CONNOR: MC9 and tab 21.

PN498

JUSTICE GIUDICE: And along with those go some handwritten notes from Michael Clarke, which are MC8, MC10.

PN499

MR PARRY: Yes. No doubt they do appear to be correspondence written on the letterhead of ACM, addressed to Mr Clarke, dealing with employment issues that he has raised. Now, I'm not - yes, well - - -

PN500

JUSTICE GIUDICE: Well, I suppose my question is this. How is that series of correspondence consistent with the construction of the agreement for which you contend? These seem to be addressed to Ms Dolan as the employer and she seems to respond in that vein. I'm just not too sure how that correspondence fits in to your construction of the agreement?

PN501

COMMISSIONER O'CONNOR: Also MC5 in relation to Mr Wolfgang Sadlo's evidence as to his employment history. In MC5 he addresses a letter to Mr Michael Clarke on Australian Correctional Management letterhead. It's dated the 14th of the 4th, 2000, which is at tab 17.

PN502

MR PARRY: I'm not absolutely sure, the construction of the AWA to which your Honour is referring. Firstly, there is an AWA. That AWA and the employment is clearly between Pacific Rim Employment and Mr Lloyd or Mr Clarke. There is direction given and a supervisor there from PRE. The other employees that gave evidence all gave evidence of being employed by PRE. Now, the construction I contend for is that there was an employment relationship in existence between PRE and these two persons. Now, I don't deny that there is various pieces of correspondence and direction given to either Mr Sadlo or others at Curtin on ACM letterhead.

PN503

Now, the fact that somebody else is directing supervision or management of PRE is not inconsistent with there being an employment relationship in existence. Now, the fact that somebody outside a company may well direct its employees doesn't negate the existence of an employment relationship. I accept that as the Commissioner and yourself have pointed out, there is MC5, which is a document from Mr Sadlo to Mr Clarke. Now, I don't recall there being any cross-examination of Mr Sadlo as to why he used that letterhead. That was letterhead that obviously he chose to use for whatever reason, but at that stage when he sent that, he was still an employee of PRE. There is also the document from Grace Dolan, Human Resources Officer. That's on a letterhead of ACM. She is responding directly to Mr Clarke about - - -

PN504

SENIOR DEPUTY PRESIDENT KAUFMAN: That's LC9, is it?

PN505

MR PARRY: I'm sorry. MC7.

PN506

COMMISSIONER O'CONNOR: MC7.

PN507

MR PARRY: She's responding with regard to her particular query; what I would anticipate was the position, that ACM had a personnel department which dealt with these matters. PRE didn't. But I don't recall there being any particular evidence about that.

PN508

SENIOR DEPUTY PRESIDENT KAUFMAN: MC9 causes you some more difficulties, doesn't it, Mr Parry? Well, in that one, in the second paragraph, she points out to Mr Clarke that he's a casual employee of ACM and he's not entitled to sick leave and then in accordance with the signed AWA which is with a different company. Certain things might result. And then in the next paragraph she talks about company policy:

PN509

Any request for extension to the original 44-day contract must be authorised by the General Manager.

PN510

She seems there to be talking with an ACM hat on.

PN511

MR PARRY: I'm not sure of the difficulty your Honour refers to. Whether it's the fact that there is an employment relationship between, or was an employment relationship or not. If one looks at MC9, she's responding to a fax of Mr Clarke, where he's stating a grievance, which he describes as, "Your grievances with ACM". She then refers to consulting with Human Resources:

PN512

I have been advised that as you are a casual employee of ACM, you are not entitled to sick leave.

PN513

Now, your Honour has before the Commission the piece of paper which has that she is, or that this person was a casual cook employed by ACM. So that is arguably open for Ms Dolan to form the view that Mr Clarke was a casual employee of ACM.

PN514

MR LLEWELLYN: With respect to documents not before the Commission. There's evidence that says he signed something, but there's no document to say that ACM ever accepted he was a casual cook.

PN515

MR PARRY: Well, there is evidence that he signed the document. Now, it goes on:

PN516

Under the conditions of the contract signed by you on 4 January, and in accordance with company policy.

PN517

SENIOR DEPUTY PRESIDENT KAUFMAN: That's the AWA.

PN518

MR PARRY: Yes. Well, he did sign a contract on 4 January, or he signed the AWA on 4 January. In accordance with company policy - we don't know which company policy that is - any requests for extension of the original 44-day contract must be in writing authorised by the General Manager. And then she refers to the terms of the contract. I'm sorry, there is one other part that your Honour raised.

PN519

SENIOR DEPUTY PRESIDENT KAUFMAN: I think it was the next sentence, Mr Parry, "We have received nothing to indicate that there has been an extension."

PN520

MR PARRY: Well, no doubt she is responding to correspondence that he has written. No doubt Australian Correctional Management is in a position where it influences or gives direction to PRE in its employees. That much can be inferred from this correspondence that ACM or officers of ACM are directing, guiding, giving policy, responding.

PN521

SENIOR DEPUTY PRESIDENT KAUFMAN: And you say so what?

PN522

MR PARRY: In respect of PRE employees. And I say so what? If that doesn't change the status of these people being employees of PRE. That hasn't been an argument that's been run. It certainly wasn't the subject of findings below.

PN523

SENIOR DEPUTY PRESIDENT KAUFMAN: The application for relief was as against PRE, wasn't it? It must have been.

PN524

MR PARRY: If it's to be put that it's the wrong employer, I'm quite happy about that and I'll walk out now. If that's going to be an argument that will be run. I thought everyone approached this on the basis that the employer was PRE.

PN525

SENIOR DEPUTY PRESIDENT KAUFMAN: Yes. That's what I'm putting to you.

PN526

MR PARRY: And we accept that. We're not arguing for anything different. We say that there was, as I've shown the Commission, Mr Sadlo was an employee of PRE. He was dealing with these employees in respect of their employment terms and conditions. He was fixing rosters. He was recruiting people. He was agreeing to extensions. So I really don't think a lot, in my submission, turns on the fact that a Human Resources officer of ACM or other officers of ACM are giving direction and guidance to PRE. I don't think I can take that matter much further. If the Commission pleases, I have nothing else.

PN527

JUSTICE GIUDICE: Thanks, Mr Parry. Thanks for your submissions, gentlemen. We will reserve our decision and adjourn.

ADJOURNED INDEFINITELY [2.49pm]