C2002/1520, Transcript of Proceedings [2002] AIRCTrans 2011 (4 June 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VT04192
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT LEARY
COMMISSIONER BLAIR

C2002/1520

APPEAL UNDER SECTION 45 OF THE ACT
BY JOHN CRISCIONE AGAINST THE DECISION
[915068] OF COMMISSIONER EAMES AT
MELBOURNE ON 7 MARCH 2002 IN U2001/8357

MELBOURNE

10.06 AM, TUESDAY, 21 MAY 2002

PN1

MR G. BAILEY: I seek leave to appear on behalf of the appellant, Mr John Criscione.

PN2

MR T. BAIN: I appear on behalf of Melbourne Installations.

PN3

SENIOR DEPUTY PRESIDENT WATSON: Yes. Any objection to leave for Mr Bailey to appear?

PN4

MR BAIN: No, your Honour.

PN5

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well, leave is granted. This appeal was listed subject to directions for the parties to produce written submissions. Written submissions were received from Mr Bailey on behalf of the appellant and they will be marked Exhibit 1.

EXHIBIT #1 WRITTEN SUBMISSIONS ON BEHALF OF APPELLANT

PN6

SENIOR DEPUTY PRESIDENT WATSON: Steven King and Assoc, Barristers and Solicitors, acting for the respondent, wrote to the Commission on 15 May indicating that they had not received - had not been served with the written submissions. In those circumstances the respondent was relieved of an obligation to file written submissions but will have an opportunity today to respond to submissions on the appeal. The directions also indicated the matter was listed today for brief oral submissions in support of the full written submissions filed. Mr Bailey, what do you wish to put to us in relation to the appeal?

PN7

MR BAILEY: Thank you, your Honour. This matter was heard by Commissioner Eames in relation to the jurisdictional points on whether the employee was actually full time and/or casual. We say that prior to 2 November the employment that the applicant commenced was full time, and if we go by what the respondent's affidavit says - I don't know the exhibit numbers, your Honour, but I am sure you will have that in front of you, it is with the exhibit of Timothy John Bain.

PN8

SENIOR DEPUTY PRESIDENT WATSON: Yes, that was Exhibit2 in the proceedings before the Commissioner.

PN9

MR BAILEY: Does your Honour have a copy?

PN10

SENIOR DEPUTY PRESIDENT WATSON: I have a copy, but I am not sure my colleagues do.

PN11

DEPUTY PRESIDENT LEARY: No, I don't.

PN12

MR BAILEY: Three copies were all lodged with the Registry, sir. You should have all the same copies of everything.

PN13

SENIOR DEPUTY PRESIDENT WATSON: Yes. That doesn't appear to be so, but go on.

PN14

MR BAILEY: In item 5 of his affidavit he points out the fact that he spoke to the applicant about the possibility that there was not sufficient work to sustain his full-time employment. At that point in time we submit that there was nothing official as to - to change the contract of employment from full time to casual. In fact, he mentioned it to the applicant; nothing was ever put in writing to him, or he wasn't given official notice from that point.

PN15

SENIOR DEPUTY PRESIDENT WATSON: What do you mean by official notice, Mr Bailey?

PN16

MR BAILEY: Official notice to say: Well, as of now, or as of this date, you will be a casual employee. He has just touched - - -

PN17

SENIOR DEPUTY PRESIDENT WATSON: The affidavit of Mr Bain says: In late October I was forced to advise the applicant there would no longer be any full-time work available. However, I was able to offer him casual employment which he accepted. That seems to suggest the parties entered into a contract of casual employment at the time.

PN18

MR BAILEY: Sir, what we are going to say is this. Section 170CM of the Act requires that statutory notice will be given to terminate one contract of employment and then commence another. We say that insufficient notice was given prior to 2 November when he did start casual, and the annual leave component was paid after 2 November for that period.

PN19

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN20

MR BAILEY: Sir, I would like to refer his Honour - his Honours, Commissioner, to the decision of Lord Justice Denning in Hill v C>A> Parsons Ltd, and he says this - I point your Honours, Commissioner, to the first paragraph - he says:

PN21

Then comes the important question. What is the effect of an invalid notice to terminate? Suppose the master gives a servant only one month's notice ...(reads)... does not terminate a contract of employment.

PN22

My submission is that Mr Criscione did not accept the new contract of employment.

PN23

SENIOR DEPUTY PRESIDENT WATSON: Well, what is the evidence for that?

PN24

MR BAILEY: It was with reluctance, sir. And it was in his evidence that he didn't have any choice. The changeover period was well short of a week. The choices that Mr Criscione was given was either take the casual employment or don't have a job.

PN25

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN26

MR BAILEY: I think that was inevitable if he hadn't taken the casual employment. Just because somebody takes it doesn't mean they accept it.

PN27

SENIOR DEPUTY PRESIDENT WATSON: I am sorry, it does. It is an acceptance of an offer.

PN28

MR BAILEY: Well, what we say, sir, is that - - -

PN29

COMMISSIONER BLAIR: Mr Bailey, you say that somebody, in making an offer, if an offer is made to somebody and they are not happy about it, but they work to that offer, that they haven't accepted it; what have they done?

PN30

MR BAILEY: Well, sir, what we say is that his employment continued on from 2 November and we say that he was forced, he was put in that situation by the employer without being given a choice.

PN31

COMMISSIONER BLAIR: Well, he was. He had two options. He had an option of accepting the offer of casual work or accepting that there would be no work.

PN32

SENIOR DEPUTY PRESIDENT WATSON: And the receipt of whatever entitlements were available to him.

PN33

MR BAILEY: Sir, there is nothing in the evidence by the respondent to suggest that he was given those options. I am sure the respondent will give his submissions on that point.

PN34

SENIOR DEPUTY PRESIDENT WATSON: No, the evidence is of Mr Bain that in late October he was forced to advise the applicant that there would no longer be any full-time work available:

PN35

However, I was able to offer him casual employment, which he accepted.

PN36

MR BAILEY: That was the respondent's evidence.

PN37

SENIOR DEPUTY PRESIDENT WATSON: Yes. Was that challenged?

PN38

MR BAILEY: That wasn't the evidence of the applicant.

PN39

SENIOR DEPUTY PRESIDENT WATSON: What was the applicant's evidence?

PN40

MR BAILEY: Sir, I haven't got a copy of the transcript. However, as I recall, the applicant didn't have a choice.

PN41

SENIOR DEPUTY PRESIDENT WATSON: Well, he did have a choice. He was offered casual employment, which he accepted. That is the evidence of Mr Bain, which doesn't seem to have been challenged. And the evidence is also that - that occurred in late October, the casual employment commenced 2 November which would have constituted a requisite notice. And that seems to be consistent with the evidence of the applicant at 261 that he was advised about a week prior to the casual employment of those developments.

PN42

MR BAILEY: Sir, we say that the employer had touched on the subject. Nothing was officially put to the applicant.

PN43

SENIOR DEPUTY PRESIDENT WATSON: What do you mean officially? That is the problem.

PN44

MR BAILEY: Official, by way of a letter to the applicant, or verbally to the applicant.

PN45

SENIOR DEPUTY PRESIDENT WATSON: Why does it have to be a letter? Section 170CM doesn't refer to written notice.

PN46

MR BAILEY: Okay, well, let us look at it verbally, your Honour.

PN47

DEPUTY PRESIDENT LEARY: But if you look at the transcript, there is quite a discussion about the sort of shifts that the applicant could work because he obviously had another job, and the offer made by Mr Bain involved discussing what shifts he was available to do. So there was some discussion about it. That was the applicant's evidence.

PN48

MR BAILEY: Yes, your Honour. I guess the other point that I would argue is this, that taking into account that proper notice wasn't given, how can the first contract be terminated?

PN49

DEPUTY PRESIDENT LEARY: Well, that is your submission, isn't it?

PN50

MR BAILEY: It is my submission. It wasn't paid out. No annual leave was paid at that point. My second - - -

PN51

SENIOR DEPUTY PRESIDENT WATSON: What is the relevance of that? The annual leave was paid, but that is simply a question of an entitlement which is recoverable at law. It doesn't invalidate the termination.

PN52

MR BAILEY: Well, sir, it still goes to the question of notice.

PN53

SENIOR DEPUTY PRESIDENT WATSON: Well, the notice, on the evidence, was plainly given. Was there any challenge to Mr Bain's evidence in paragraph 5 of his statement?

PN54

MR BAILEY: No, there wasn't. The matter was touched in September and October, well, certainly, October. But what I am saying is this, that, is the first contract of employment given that insufficient notice was given pursuant to section 170CM of the Act, due to that fact alone, the question is does that first contract of employment still stand, even though, even though the employer says: You are casual as of 2 November?

PN55

SENIOR DEPUTY PRESIDENT WATSON: In circumstances where the employee was offered and accepted casual employment. And the answer to that is plainly, yes, the casual employment was on foot, is it not?

PN56

MR BAILEY: Certainly sir. But in - on face it appears so, on the way he was employed from that time. However, things are forced upon employees every day of the week. Whether they accept them or not is another question. If somebody forces - if person A forces person B to do something, does that mean person B has accepted that contract?

PN57

SENIOR DEPUTY PRESIDENT WATSON: Are you suggesting there was duress? Is there any evidence of duress? The evidence is that the applicant was advised that full-time work was no longer available and offered casual employment which he accepted.

PN58

MR BAILEY: Sir, your Honour, we say that he wasn't given much of a choice. That it actually put him in a position where he had to take it reluctantly.

PN59

COMMISSIONER BLAIR: Whether he took it reluctantly - he says it regretfully in his transcript - whether he took it reluctantly or regretfully, he accepted it.

PN60

MR BAILEY: Commissioner, does that - in law - - -

PN61

COMMISSIONER BLAIR: If you want to quote law, if you look at Denning, which you have quoted, it says:

PN62

... then it is not in law effective to terminate the contract unless of course the servant accepts it.

PN63

MR BAILEY: Yes.

PN64

COMMISSIONER BLAIR: So here we have the applicant in the matter that says, and he says in transcript:

PN65

...which I really didn't want to but I had to because I needed the money so I agreed to it with a promise that I would be put full time when business picked up again.

PN66

Then he says, at paragraph number 230:

PN67

And I regretfully agreed because I needed the money.

PN68

Now, there were two options. He either accepted what was put to him by Mr Bain or, it was very clear because as part of the argument it was made abundantly clear to him that there was no full-time work, and casual was an option, which he accepted.

PN69

MR BAILEY: I understand your point, Commissioner, on what you say, but when employees are forced into these corners, what can they do? Was he supposed to leave the employment? Was he supposed to starve? Was he supposed to be not to be able to pay the rent? Was he supposed to not to be able to live up to his commitments financially?

PN70

COMMISSIONER BLAIR: But that is a judgment that he must make. I mean, if he has got full-time employment and there are two positions put, that there is not sufficient work for full-time employment but there is sufficient work: I am able to give you some work on a casual basis, and then once business picks up I will be able to offer you full-time employment again, then the employee makes a choice. The employee says, do I take my chances and go out into the workplace and see whether I can find alternative full-time employment or do I at least accept, maybe on an interim basis, some casual employment, where there is still some income coming in and I might be able to supplement that either through some form of social security or finding some other casual position to supplement it until a full-time position becomes available.

PN71

MR BAILEY: Yes.

PN72

COMMISSIONER BLAIR: Now, Mr Bain says that when things did pick up and he went back to the applicant and said: Things have picked up, I am prepared to offer you, now, better employment, the applicant says no.

PN73

MR BAILEY: Commissioner, do employers feel they have got no more work, the question is, can they knock a full time back to a casual, keep him casual and then go full time, and then perhaps part time, then back to full time? Can employers keep on changing the contract of employment, just like this employer has?

PN74

SENIOR DEPUTY PRESIDENT WATSON: Well, the answer to that is, yes, they can, if there is an offer and acceptance.

PN75

COMMISSIONER LEARY: That is right, if there is an agreement.

PN76

MR BAILEY: Even if there is a regretful - - -

PN77

COMMISSIONER LEARY: The point is, it is like getting a speeding ticket. I mean, the police officer hands you the ticket. You don't like it, but you take it. So you have accepted it. And you might take it under protest, the mere fact that you accept it, under protest, says that you have accepted it. You haven't rejected it. You have taken the ticket. So you accept it.

PN78

MR BAILEY: Yes, I take the Commissioner's point.

PN79

COMMISSIONER LEARY: I mean, Spicer J, of the old Federal Court, or Industrial Court, during the days, the halcyon days of the Industrial Relations Bureau, and I am not sure whether you remember that.

PN80

MR BAILEY: No, I don't, Commissioner.

PN81

DEPUTY PRESIDENT LEARY: Some of us do.

PN82

COMMISSIONER LEARY: One of the first cases was a case against the Metal Workers Union, and the barrister stood up to make an appearance on the invitation of the Chief Justice, and he said: Well, I am here begrudgingly. And Smithers J said: I don't care if you are here begrudgingly, are you here? And he said: Yes, I am. And he said: Fine, that is all I want to know. It is the same thing. He might accept casual employment regretfully, which is his term, but he has accepted it. That is the bottom line.

PN83

MR BAILEY: Yes, thank you, Commissioner. They are my - I have got no further argument.

PN84

SENIOR DEPUTY PRESIDENT WATSON: Mr Bain, we don't need to hear from you at this point. We will adjourn very briefly and announce the decision.

SHORT ADJOURNMENT [10.26am]

RESUMED [10.28am]

PN85

SENIOR DEPUTY PRESIDENT WATSON: We have reached the unanimous decision and I am able to announce our decision in appeal. This is an appeal pursuant to section 45 of the Workplace Relations Act 1996 for which leave is required by John Criscione against a decision of Commissioner Eames initially in transcript and later published in Print PR915068.

PN86

An appeal only lies to a full bench with leave of a full bench. If in the opinion of the full bench the matter is of such importance that in the public interest leave should be granted the bench shall grant leave. A Full Court of the Federal Court in Wan v Australian Industrial Relations Commission (2001) FCA1803 said in relation to the granting of leave:

PN87

It will be rarely, if ever, appropriate to grant leave unless an arguable case of appellable error is demonstrated.

PN88

In the present appeal, the appellant's representative, Mr Bailey, filed written submissions on 22 March 2002. We heard brief oral submissions in support of the written material and found it unnecessary to hear from the respondent.

PN89

Nothing raised in the grounds of appeal or the appellant's written or oral submissions establishes an arguable case that the decision of Commissioner Eames was wrong. The matter before Commissioner Eames was whether or not the appellant was as a casual excluded from bringing his application by regulation 30(B)(1)(d) because he was a short-term casual employee as defined in regulation 30B(3). The appeal grounds do not seriously challenge the decision of the Commissioner in relation to this question.

PN90

On the evidence before the Commissioner the appellant was plainly engaged as a casual employee at the time of termination of his employment. Indeed, the appeal grounds confirm the appellant's employment status as that of a casual employee at the time of termination, save for the point raised on the basis of the alleged failure to provide notice of the cessation of the appellant's full-time employment. On the face of the application the casual employment of the appellant continued within a period exceeding - occurred in a period not exceeding 12 months and the decision of Commissioner Eames was undoubtedly correct.

PN91

The grounds of appeal and appellant's submission raised an allegation that the appellant was not given or paid notice when a brief period of full-time work ceased prior to the resumption of casual work before the termination. The appellant contended that valid notice was not given, and that in the absence of valid notice the change of the appellant's status to that of a casual employee is of no effect, the appellant's full-time employment continued. This is a baseless proposition. The evidence before Commissioner Eames on this point supports a finding that the required notice of at least one week was given and the appellant accepted the offer of casual employment made to him by the respondent.

PN92

None of the grounds advanced by the appellant or submissions put on his behalf remotely raises an arguable case that the decision of the Commissioner was wrong. There is simply no arguable case that the decision under appeal is wrong. Leave to appeal is refused. We will publish fuller reasons in due course. We now adjourn.

ADJOURNED INDEFINITELY [10.33am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 WRITTEN SUBMISSIONS ON BEHALF OF APPELLANT PN6