Briscoe and Newcastle Knights Limited [2003] NSWIRComm 287

Industrial Relations Commission of New South Wales

CITATION : Briscoe and Newcastle Knights Limited [2003] NSWIRComm 287 APPELLANT Anthony Sidney Briscoe PARTIES : RESPONDENT Newcastle Knights Limited FILE NUMBER: IRC 3020 of 2003 CORAM: Wright J President; Walton J Vice-President; Ritchie C CATCHWORDS : Appeal - Unfair dismissal - Whether employee exempted from relief because he was "engaged under a contract of employment for a specific task" - Parties agree to appeal being upheld - Descretion of Full Bench - Appeal upheld - Matter remitted for hearing on the merits. LEGISLATION CITED : Industrial Relations Act 1996 s 83 s 84 Industrial Relations (General) Regulation 2001 cl 6 CASES CITED : Pride v Mark Hansen Real Estate Pty Limited [2003] NSWIRComm 239 HEARING DATES: 09/03/2003 EXTEMPORE JUDGMENT DATE : 09/03/2003

APPELLANT Robinson Legal (Mr B Spinks)

LEGAL REPRESENTATIVES: RESPONDENT Mr R S Warren of counsel Greg Tyler & Associates (Mr G Tyler)

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President RITCHIE C Wednesday 3 September 2003

Matter No IRC 3020 of 2003

ANTHONY SIDNEY BRISCOE AND NEWCASTLE KNIGHTS LIMITED

Application by Anthony Sidney Briscoe for leave to appeal and appeal against a decision of Commissioner Redman given on 16 May 2003 in Matter No IRC 1134 of 2003

DECISION (Extempore) [2003] NSWIRComm 287

1 The appellant, who is a former employee of the respondent, seeks leave to appeal, and subject to leave being granted, also appeals against the decision given on 16 May 2003 by Commissioner Redman in which it was held that the appellant was precluded by cl 6(1)(b) of the Industrial Relations (General) Regulation 2001 from pursuing his application for relief under s 84 of the Industrial Relations Act 1996 because he was employee, in terms of that provision, "engaged under a contract of employment for a specific task".

2 Clause 6 of the Regulation was made pursuant to s 83(2) of the Industrial Relations Act which provides that the relevant part of the Industrial Relations Act (Part 6 of Chapter 2) does not apply to an employee who is exempted from Part 6 of the statute by the regulations. Section 83(2) specifically provides that the regulations may only exempt specified classes of employees including "(a) employees engaged under a contract of employment for a ... specific task".

3 The evidence before the commissioner indicated that the appellant had been employed by the respondent, the well known Newcastle Rugby League Football Club, as a Ground Announcer for the respondent's home-match days since 1988 at the Energy Australia Stadium at Newcastle. Although employed for fifteen years, the appellant was one of a number of on-ground announcers; his services were utilised on about thirteen occasions each year for approximately six hours on each occasion for which he was paid an agreed amount; he was only engaged during the national rugby league season between March and August each year and was not paid any remuneration for those months when he did not work as an on-ground announcer. In the fifteen year period there was only one occasion (which occurred in 1997) when a game was cancelled due to heavy rain. The appellant was not required that day to perform his usual work and he was not paid for the day.

4 There was some difficulty in the appellant complying with the directions that had been made to ready the appeal for hearing today so that on 21 August 2003 the matter was called on for directions and the Commission was advised that the appellant's submissions were then available and would be filed that day. Variations were made to the initial directions made for the appeal in an attempt to ensure that the hearing date set today could be maintained.

5 Subsequently, on Friday 29 August 2003, the Commission was advised by the solicitors for the appellant that they had been advised by the respondent's legal representatives that the respondent would not be opposing the application for leave to appeal being granted or the appeal being upheld. The Commission was thus advised that the parties would be seeking that the following orders be made by consent:

1. The application for leave to appeal be allowed

2. The appeal be allowed

3. That the matter be remitted to Commissioner Redman to be determined according to law.

6 Accordingly, the Full Bench has before it an application that the Commission, by consent, grant leave to appeal, allow the appeal, quash the decision of Commissioner Redman (which had the effect of terminating the proceedings before the Commission) and remit the proceedings to the commissioner for determination on the merits. It is of course a matter for the Full Bench whether it is prepared to act on the agreement of the parties. The fact of the agreement is nevertheless a very material consideration in the determination of the proceedings: see, for example, Pride v Mark Hansen Real Estate Pty Limited [2003] NSWIRComm 239.

7 In determining how the Full Bench should deal with this matter, we have had regard to the decision of Commissioner Redman, the notice of appeal and the submissions which have been filed in the proceedings. We consider that the actions taken by the parties and, in particular, the respondent in reaching a compromise in the matter was most appropriate and the parties are to be commended for acting to resolve the matter as soon as they were in a position to do so.

8 We consider that the Commission should, in the exercise of its discretion, make orders in accordance with the agreement of the parties. Accordingly, orders are therefore made as to the appeal in terms of those set out in paragraph [6] above. These proceedings are accordingly concluded. ___________________________________

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