INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VI 5977 of 1995

B E T W E E N :

PAUL MARSHALL HATTEN

Applicant

A N D

MARGARET ANN CRAPPER

First Respondent

A N D

TONY PHILLIP CRAPPER

Second Respondent

MINUTES OF ORDERS

Judicial Registrar Millane                                           17 December 1996

THE COURT ORDERS THAT:

1.         The applicant’s application is dismissed.

NOTE:     Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VI 5977 of 1995

B E T W E E N :

PAUL MARSHALL HATTEN

Applicant

A N D

MARGARET ANN CRAPPER

First Respondent

A N D

TONY PHILLIP CRAPPER

Second Respondent

Before:           Judicial Registrar Millane

Place:             Melbourne (heard in Warrnambool)

Date:               17 December 1996

REASONS FOR JUDGMENT

This case involved the employment of the applicant on the respondent’s boat, the Sonia Marie, as a deckhand.  It is alleged that at the commencement of the 1995/1996 crayfish season from mid November 1995 to the end of August 1996 the respondent unlawfully terminated the applicant’s employment; in that the respondent failed to notify the applicant that he would not be required for the season then commencing.

Although it was claimed by the applicant that he had worked with the respondent since 1989, it was apparent from the answers given in cross-examination and the respondent’s evidence that the two men worked on a trawl fishing boat owned by another person and at the relevant time the applicant was not employed by the respondent.  This situation changed at the beginning of the 1993 crayfishing season when the respondent acquired his boat, the Sonia Marie, and contacted the applicant between August and November 1993, requesting the applicant work for him as a deckhand. 

The nature of the work undertaken in the crayfish industry is seasonal.  This means that the crayfishing boats go out each day between mid November and the end of August of the following year.  The deckhands are paid a percentage of the catch, in this case, the applicant was paid 18% of the catch, as well as a salary until the end of the season.  In return they are expected to work for the full season and a further two to three weeks subsequent to the end of the season helping to do maintenance work on the cray pots and the boat if required. 

It was accepted that the applicant worked two full seasons with the respondent.  According to the applicant’s evidence the practice in the crayfish industry is that a deckhand has a job with the same boat in the next season unless the deckhand is informed that they are not required.  For instance, at the end of the 1994 season in August/September 1994, the applicant claimed he had no contact with the respondent and there was no indication from the respondent to him that he did not have a job for the next season.  What occurred was that his expectation that he would resume work the next season was realised for the following season.  During the lay-off at the end of that season he was not informed by the respondent that he would not be required and was surprised when he was not able to resume work with the respondent in November 1995. 

In order to make my decision in this matter it is not necessary for me to canvass any matters to do with the applicant’s performance and any disagreements between the two men during the currency of the employment and towards the end of the 1994/95 season.  It was agreed that in the days before the end of the 1995 season, during August 1995 the applicant injured his hand but still attended to assist on the boat.  However, he did not, according to the respondent, make himself available for maintenance work and this matter obviously upset the respondent.

It was common ground that at the end of each season because there are some months during which deckhands are not paid any wages an Employment Separation Certificate is provided citing shortage of work as the reason for termination of employment.  The deckhand is, as a result, able to obtain unemployment benefits for the period of the time laid off work. 

It was the respondent’s case that the abovementioned arrangement amounted to a seasonal engagement and that although the applicant may have expected to be re-employed during the next season, the contract of employment was not terminated at the initiative of the respondent but was terminated by the effluxion of time in circumstances where the applicant was engaged for a specified period.

In this case the contract of employment entered into was entered into prior to 16 November 1994 and is therefore not caught by the amendments to the Act and Regulations.  Regulation 30B(1) made pursuant to section 170CC of the Act provides:

“30B(1)            Subject to subregulation (2), for the purposes of section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act:

(a)        an employee engaged under a contract of employment for a specified period of time, being a contract that was entered into before 16 November 1994;”

...

(2)   Subregulation (1) does not apply to employee engaged:

(a)        under a contract of a kind referred to in paragraph (1)(a) or (aa); or

(b)        ...

if a main purpose of the engagement under a contract of that kind is, or was at the time of the employee’s engagement, to avoid the employer’s obligations under Subdivision B, C, D or E of Division 3 of Part VIA of the Act.”

The decisions of this Court in Andersen v Umbakumba Community Council 1 IRCR 457 and Cooper v Darwin Rugby League Inc 1 IRCR 130 dealt with an earlier version of reg 30B(1) which stated as follows:

            "30B (1) For the purposes of section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act:

            (a)        subject to subregulation (2), employees engaged under a contract of employment for a specified period of time;

            ...

            (2) Paragraph (1)(a) does not apply to an employee engaged under a contract of a kind referred to in that paragraph if a main purpose of the employee's engagement under a contract of that kind is to avoid the employer's obligations under Subdivision B, C, D or E of Division 3 of Part VIA of the Act."

The contracts considered in the abovementioned cases were in writing and particular clauses were relied on in order to determine whether or not the contract was for a specified period.  In his decision in Andersen’s case, His Honour Justice von Doussa considered the meaning of the phrase “a specified period” and made the following observations at page 462:

            “...The ordinary meaning in the English language of "to specify" is to mention, speak of, or name (something) definitely or explicitly; to set down or state categorically or particularly; to relate in detail: Shorter Oxford English Dictionary, 3rd Edition.  In the context of Art. 2, para. 2(a) of the Termination of Employment Convention "specified" identifies a period of time or a task the scope and parameters of which are stated definitely.  A "specified period of time" is a period of time that has certainty about it.  A contract of employment for a specified period of time would be one where the time of commencement and the time of completion are unambiguously identified by a term of the contract, either by the contract stating definite dates, or by stating the time or criterion by which one or other end of the period of time is fixed, and by stating the duration of the contract of employment.  As the period of time is defined in this way, it is apt to refer to a contract of employment for a specified period of time as a contract of employment for a fixed term, although this is not the description used in the Regulation.

            A contract of employment to run throughout a nominated number of days, weeks, or years would be a contract of employment for a specified period of time.  If the terms of the contract of employment, instead of identifying in this manner the period of time during which it is to run, provides that it is to run until some future event, the timing of the happening of which is uncertain when the contract is made, the contract will be for an indeterminate period of time.”

In the case at hand the applicant agreed that he was employed on a seasonal basis; that is to say, for the crayfishing season commencing mid November to the end of August the following year with an agreement to do maintenance work on the boat or cray pots for a further two to three weeks at the end of the season; the payment for this additional work being included in the percentage of the catch and salary received throughout the season just ended.  In my view by its terms this was not a contract for an indeterminate period because the timing of the end of the fishing season and the maintenance period was determined even if a precise date is not nominated. 

What occurred during the earlier seasons worked by the applicant was that at the end of the season and after any maintenance work required, the applicant left work and as I have already indicated was given an Employment Separation Certificate which enabled him to obtain unemployment benefits but also clearly stated that his employment had been terminated due to the shortage of work.  This was a position he accepted and understood to be appropriate.  The Court was told that this arrangement was said to be a common one in the crayfishing industry reflecting as it does the seasonal nature of the work.

Unlike the contract dealt with in the Andersen and Cooper cases, the contract of employment entered into by the applicant and the respondent did not provide an unqualified right for either or both parties to terminate the contract before the cessation date provided for in the agreement. 

One of the matters relied on by the applicant was that in his experience a deckhand could expect to return to the same job at the commencement of the following season unless informed by the owner to the contrary.  This argument appears to rely on some notion of continuity of employment despite the Employment Separation Certificate providing for termination and the seeking of unemployment benefits in the interim.  In my view the contention is unsustainable.  It is apparent from the applicant’s other evidence that the contract was treated as being at an end in September of each year, not because of any act on the employer’s part, but because the season had finished and at best there was a mere expectation of further work.  However, such an expectation is not a relevant consideration when determining whether there was a termination of employment under the Act (see my decision in Shields v Rubbermaid Australia Pty Ltd (unreported, IRCA, Millane JR, 19 July 1996)).  There was no enforceable contractual right to re-engage deckhands just as there was no enforceable contractual right to preclude them from offering their services to other crayfish boats for the next season, possibly in the hope of getting work on a boat with a higher return on its catch.  In other words, any employment at the commencement of the next season was dependent on there being a new contract of employment entered into.

An alternative argument raised by the respondent in this proceeding was that the contract was for a specified task.  I have not addressed this alternative argument as it seems to me that the applicant has failed to establish on the balance of probabilities that at the end of the 1995 crayfish season he was employed pursuant to a continuous contract of employment.  Accordingly, the order I propose to make is that the applicant’s application is dismissed.

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1.         The applicant’s application is dismissed.

NOTE:     Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.

Associate:                 

Dated:                                    17 December 1996

Solicitors for the Applicant:                        Howman & Harris

Counsel for the Applicant:             Mr B. Lacy

Solicitors for the Respondent:       Bassett & Sharkey

Counsel for the Respondent:        Mr C. O’Grady

Date of hearing:                               22 October 1996

Date of judgment:                            17 December 1996