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  4. Alistair v Brisbane City Council (No 2) - [2025] QIRC 139

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Alistair v Brisbane City Council (No 2)[2025] QIRC 139

Alistair v Brisbane City Council (No 2)[2025] QIRC 139

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Alistair v Brisbane City Council (No 2) [2025] QIRC 139

PARTIES: 

Alistair, Annabelle

(Applicant)

v

Brisbane City Council

(Respondent)

CASE NO:

TD/2024/73 

PROCEEDING:

Application for Reinstatement – application in existing proceedings

DELIVERED ON:

30 May 2025

HEARING DATES:

20 March 2025

19 May 2025

MEMBER:

Hartigan DP

HEARD AT:

Brisbane

ORDER:

  1. The application in existing proceedings filed 11 February 2025 by the Respondent is granted.
  1. The proceeding, being TD/2024/73, is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – DISMISSALS – UNFAIR DISMISSAL – JURISDICTION – DISMISSAL – where the Applicant filed an application for reinstatement – where the Respondent raised a jurisdictional objection – where the Applicant's contract of employment was terminated before the nominal end date – whether the Applicant was engaged for a "specific period or task" – whether s 315 of the Industrial Relations Act 2016 (Qld) applies to the Applicant – whether the Applicant was participating in a "labour market program" – application in existing proceeding granted – the proceedings dismissed.

LEGISLATION:

Fair Work Act 2009 (Cth), s 386

Further Education and Training Act 2014 (Qld), sch 1

Industrial Relations Act 2016 (Qld), s 315, s 316, s 317, sch 5

CASES:

Alouani-Roby v National Rugby League Ltd (2024) 307 FCR 65

Andersen v Umbakumba Community Council (1994) 56 IR 102  

R v A2; R v Magennis; R v Vaziri (2019) 269 CLR 507

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362

APPEARANCES:

Ms A. Alistair, appearing in person as the Applicant.

Mr A. Herbert of Counsel, instructed by Wotton Kearney Lawyers appearing for the Respondent.

Reasons for Decision

Introduction

  1. [1]
    The Applicant, Ms Annabelle Alistair, has filed an application for reinstatement seeking, inter alia, reinstatement to her former position ('the proceeding').
  1. [2]
    The Respondent, Brisbane City Council ('Council') raises a jurisdictional objection and applies for an order that the application for reinstatement be dismissed on the basis that    Ms Alistair is not a person to whom the Commission may grant relief from unfair dismissal, by reason of the exclusion in s 315(1)(d) of the Industrial Relations Act 2016 (Qld) ('IR Act'). 
  2. [3]
    Ms Alistair objects to the granting of the application in existing proceedings filed               11 February 2025 by the Council and relies on the further exception contained in s 315(1)(d)(ii) of the IR Act in support of her position. 
  1. [4]
    Section 315(1)(d) of the IR Act operates to exclude an employee from relief for unfair dismissal if, inter alia, they were employed for a specific period or specific task. The issue to be determined is whether Ms Alistair is excluded from relief for unfair dismissal by operation of s 315(1)(d) of the IR Act.

Relevant Background

  1. [5]
    Ms Alistair commenced employment as a Bus Driver Trainee Level 1 with the Council on 23 June 2023. Ms Alistair was employed on a temporary contract of employment for the purpose of her undertaking a traineeship in driving operations. Ms Alistair's contract of employment had a nominal termination date of 23 June 2025 with an option to terminate the contract earlier if she passed the requirements of her traineeship prior to that date.
  1. [6]
    On 8 November 2023, Ms Alistair was suspended from her employment due to a number of allegations raised against her.
  1. [7]
    The Council commenced an investigation and show cause process into the allegations against Ms Alistair and on 16 July 2024, Ms Alistair was terminated from her employment.
  1. [8]
    On 16 July 2024, Ms Alistair filed an application for reinstatement.
  1. [9]
    Ms Alistair contends that the dismissal was unfair on a number of grounds which are unnecessary to go into any further at this juncture.
  1. [10]
    In response to Ms Alistair's application for reinstatement, the Council seeks that the application be dismissed for want of jurisdiction, on the basis that it contends that             Ms Alistair was not protected from unfair dismissal on the basis of s 315(1)(d) of the      IR Act because she was employed for a specific period and/or specific task.[1]
  1. [11]
    The Commission issued directions on 21 January 2025 for the parties to file further submissions with respect to the Council's application and listed the application for hearing on 20 March 2025.
  1. [12]
    At the hearing on 20 March 2025, the Council made submissions in respect to the statutory construction of "specific period or task" and referred to several recent authorities. These submissions will be discussed further below, however, it is suffice to say that the hearing was the first occasion in which the Council meaningfully developed its submissions with respect to the construction of s 315(1)(d) of the IR Act and the application of a recent relevant authority.
  1. [13]
    Consequently, Ms Alistair was granted an adjournment of the hearing on 20 March 2025, in order for her to be able to properly consider her reply to the oral submissions made on behalf of the Council. Further directions were subsequently issued to permit the parties to file further written submissions in this regard.
  1. [14]
    On 11 April 2025, Ms Alistair, through her support person, wrote to the Industrial Registry and sought a further oral hearing. That request was granted and a further oral hearing was listed on 19 May 2025.

Construction of s 315(1)(d) of the IR Act

  1. [15]
    It is apparent from the contentions of the parties that regard must be had to the construction of s 315(1)(d) of the IR Act, including the term "specific period or task" and the term "labour market program" contained in s 315(1)(d)(ii) of the IR Act.
  1. [16]
    The approach to be taken to ascertain the true meaning of words used is well settled.[2] The approach requires that the text of the legislative provision in question be construed by reference to its context and its legislative purpose.[3]
  1. [17]
    The relevant principles with respect to statutory construction were considered and summarised in R v A2 as follows:[4]
  1. 32The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
  2. 33Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.
  3. 34This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.
  4. 35The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a "substantial miscarriage of justice" within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.
  5. 36These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.
  6. 37None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular , "if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance". When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.

…

  1. [18]
    In SZTAL v Minister for Immigration and Border Protection,[5] the High Court identified that consideration of context may include consideration of statutory, historical and other context as follows:[6]

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

…

  1. [19]
    Additionally, s 14A of the Acts Interpretation Act 1954 (Qld) provides that, when interpreting a provision, the interpretation that best achieves the purpose of the Act is to be preferred.
  1. [20]
    Section 315 falls within Chapter 8, Part 2 "Dismissals", Division 1 of the IR Act.
  1. [21]
    Chapter 8, Part 2, Division 1 is entitled "Exclusions" and operates to identify who is excluded from the unfair dismissal regime. Section 315 of the IR Act identifies the employees to whom Part 2 does not apply, including relevantly, as follows:

315  Employees to whom this part does not apply

  1. Section 316 does not apply to any of the following—
  1. an employee during the first 3 months of employment with an employer (the probationary period), unless the employee and employer agree in writing that the employee serve—
    1. a period of probation that is shorter than the probationary period; or
    2. no period of probation; or
  1. an employee serving a period of probation that is longer than the probationary period, if the period decided, by written agreement between the employee and employer before the employment started, is a reasonable period having regard to the nature and circumstances of the employment;
  1. a short term casual employee;
  1. an employee engaged for a specific period or task, unless—
    1. the main purpose of engaging the employee in that way is, or was at the time of the employee's engagement, to avoid the employer's obligations under division 2; or
    2. the employee is participating in a labour market program and is dismissed before the period ends or the task is complete;
  1. an employee—
    1. who is not employed under an industrial instrument; and
    2. who is not a public service officer employed on tenure under the Public Sector Act 2022; and
    3. whose annual wages immediately before the dismissal are equal to or more than the amount of the high income threshold under the Fair Work Act 2009 (Cwlth), section 333.

…

  1. [22]
    Chapter 8, Part 2, Division 2 is entitled "Unfair Dismissal". Generally, it provides for a process of conciliation and arbitration following the filing of a reinstatement application in the Queensland Industrial Relations Commission.
  1. [23]
    Pursuant to s 316 of the IR Act,[7] a dismissal is unfair when it is "harsh, unjust or unreasonable".
  1. [24]
    Section 317(1) of the IR Act provides for the making of an application for reinstatement by an employee who has been unfairly dismissed.
  1. [25]
    Accordingly, if an employee is one that is identified in s 315 of the IR Act, they are excluded from being unfairly dismissed pursuant to s 316 of the IR Act.

The Relevant Terms of s 315 of the IR Act

  1. [26]
    Section 315(1) of the IR Act identifies various classes of employees to whom s 316 of the IR Act does not apply including, by way of example, employees employed during their probationary period,[8] and short term casual employees.[9]
  1. [27]
    Relevantly, s 315(1)(d) of the IR Act operates to exclude an employee from the application of s 316 in circumstances where the employee is "engaged for a specific period or task".
  1. [28]
    The IR Act does not provide a meaning for the phrase "specific period or task". The ordinary meaning of the words apply. The Macquarie Dictionary defines "specific" to include, inter alia, "… specified, precise, or particular…",[10] "period" to include, inter alia, "…any specified division or portion of time",[11] and "task" to include, inter alia, "…a definite piece of work assigned or falling to a person; a duty".[12]
  1. [29]
    Accordingly, an employee who is engaged for a specific period, or particular portion of time, or an employee who is engaged for a specific task, or particular definite piece of work, is not an employee who may be unfairly dismissed pursuant to s 316 of the IR Act.
  1. [30]
    There has been judicial consideration as to what amounts to an engagement for a "specific period". This Commission has considered the phrase,[13] and in doing so it has previously adopted the reasoning of a number of federal decisions, including Andersen v Umbakumba Community Council.[14]
  1. [31]
    In Andersen, von Doussa J considered the meaning of a contract for a specific period as follows:[15]

In the expression, "specified" is the past participle of the verb "to specify". 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 ed. In the context of Art 2, par 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.

  1. [32]
    The Council contends however, that in light of recent authorities, the Commission should not follow Andersen. I consider that submission to be correct.
  1. [33]
    A recent decision of the Full Bench of the Federal Court of Australia in Alouani-Roby v National Rugby League Ltd,[16] has placed some doubt on the reasoning in Andersen.
  2. [34]
    In Alouani-Roby, the Court relevantly stated as follows:[17]
  1. 53The authorities decided under differently-expressed provisions, although perhaps not wholly irrelevant, are not presently instructive. It is unnecessary that we should express a view about the correctness of, in particular, the decision of the Industrial Relations Court in Andersen. It suffices to observe that whatever might have been the correct construction of the phrase "contract of employment for a specified period of time" under earlier (and different) statutory and regulatory pronouncements, the correct way to construe those words as they appear in s 386(2)(a) of the FW Act is the way in which the learned primary judge was minded to construe them.
  2. 54That is so notwithstanding the significant (although not complete) commonality of terms as between s 386(2)(a) of the FW Act and its statutory ancestors. Ordinarily, the retention in new or amended legislation of an expression that has a judicially-construed meaning brings with it a presumption that that same meaning was intended to be conveyed. The learned primary judge was alive to that presumption. Her Honour referred (Primary Judgment at [97]-[98]) to the reality:

… that the phrase "contract of employment for a specified period of time" is replicated in the FW Act and … had previously been construed as not applying to contracts which were essentially outer limit contracts which allowed for early termination … However, the phrase must be construed in the context of the current, differently crafted, legislative provision as a whole. That context is instructive and supports the view that the legislature intended that the provision have a different effect than how its predecessor provisions had been interpreted …

Further, given the difference between the provisions, I do not accept that the re-enactment presumption applies. The availability of the presumption depends on the nature of the legislation, the legislative context and the legislative history indicating an awareness on the part of the legislature of earlier authority on the meaning of the language that is being reenacted. Where the provision later enacted is in an altered form, it is presumed to have a different meaning.

  1. 55Respectfully, those observations are unimpeachable. The statutory purpose underpinning s 386(2)(a) of the FW Act is to exclude from protection for unfair dismissal those whose employment terminates by agreement — rather than by or in response to some unilateral act of an employer — upon the completion of an agreed (and specified) period, task or season. As the learned primary judge noted, exclusion in that sense accords with a reality of the common law, namely that "[a]s a matter of ordinary language, an employer does not terminate an employee's employment when his or her term of employment expires".
  1. [35]
    Relevantly, the basis upon which the Full Court in Alouani-Roby determined that a contract of employment with a nominal expiry date was a contract for a specific period is set out as follows:[18]
  1. 45With the passage of the FW Act in 2009, new unfair dismissal protections were enacted. Section 386 was amongst them. Section 386(2)(a) of the FW Act, however, was not in the same terms as the exclusions that preceded it. Specifically, it consolidated various species of exclusion and introduced the concluding words, " … and the employment has terminated at the end of the period [etc]". The note that had adorned predecessor provisions since 2003 was not replicated. Thus, from July 2009, the FW Act contemplated that employment contracts that were "for a specified period of time" could include contracts that were terminable otherwise than by the expiry of that period.
  2. 46The learned primary judge accepted a contention advanced by the respondents that earlier case law considering the meaning of "contract of employment for a specified period of time" — particularly Andersen and the view expressed by von Doussa J that a contract that "… is to run until some future event, the timing of the happening of which is uncertain when the contract is made … will be for an indeterminate period of time" — should have limited, if any, application to s 386(2)(a) of the FW Act.
  3. 47The significance of that conclusion might be apparent. As has been seen, Mr Alouani-Roby's final contract of employment was terminable upon notice. It was that feature that was said to qualify it as an "outer limit" contract. Before the Commission, the respondents did not contend that it was a contract of the kind to which s 386(2)(a) of the FW Act referred. Given the state of authority within the Commission at the time — most recently and authoritatively expressed in Khayam v Navitas English Pty Ltd — that forensic choice was unsurprising.
  4. 48Nonetheless, there was no controversy, either in the Commission or below, that Mr Alouani-Roby's employment with the NRL came to an end upon the expiry of the term for which his contract provided. Mr Alouani-Roby, of course, maintains that the NRL engineered that outcome for reasons that Pt 3-1 of the FW Act proscribes; but the conclusion of the employment at that point is (and was) not disputed.
  5. 49If, as the learned primary judge found, it were the case that Mr Alouani-Roby was employed pursuant to a contract of employment for a specified period of time and that his employment terminated at the end of that period, then it will necessarily follow that any error of law affecting the Full Bench Decision will be immaterial (and, therefore, not an error of jurisdiction), because the Commission would have been obliged on that alternative basis to dismiss his application precisely as it did.
  6. 50That is the conclusion to which her Honour was attracted: Primary Judgment, [101]. Respectfully, she did not err in favouring it. The concluding words in which s 386(2)(a) is expressed very clearly disclose that the statutory conception of "a contract of employment for a specified period of time" is apt to include fixed-term contracts that are terminable otherwise than by the expiry of their fixed terms. At least for present purposes, a contract of employment that is expressed to terminate upon the expiry of a nominated term is a contract for a specified period of time; and it is no less so merely because it reserves for the parties other modes of earlier termination.
  7. 51The proposition just stated is, it must be said, difficult to reconcile with what von Doussa J observed in Andersen. Albeit in obiter — and in a very different context — those observations were referred to with apparent approval in Barratt v Howard. Although the position may have changed since, the proposition is inconsistent with Commission authority that prevailed at the point of the Full Bench Decision.
  8. 52Be that as it may, we think that the import of the words in which s 386(2)(a) of the FW Act is expressed is appreciably clear: a contract that is expressed, whether subject to other rights or not, to run for a nominated term is, for the purposes of s 386(2)(a) of the FW Act, a contract for a specified period; and remains as much notwithstanding that it might lawfully be brought to end otherwise than by (which is to say, before) the expiry of that period. If we are wrong about that and s 386(2)(a) of the FW Act permits of alternative constructions, any attendant ambiguity is immediately resolved upon consultation of the explanatory memorandum that accompanied the Fair Work Bill 2008 (Cth). The intention underpinning the section could hardly have been made clearer: the " … fact that an employment contract may allow for earlier termination would not alter the application of [s 386(2)(a)]".
  1. [36]
    Accordingly, it was held that an engagement for a "specific period of time" includes what has been described as an "outer limit contract", that is a contract that is said to run for a nominal period but with the contractual capacity to terminate it earlier.
  1. [37]
    It should be noted that the consideration of the phrase "specific period of time" was conducted in the context of the Fair Work Act 2009 (Cth) ('FW Act'). Whilst there are a number of similarities between the federal and state legislation, there is a distinction with the manner in which unfair dismissals are dealt.
  1. [38]
    In this regard, s 386(1) and s 386(2) of the FW Act, respectively, provide when a person has been dismissed or has not been dismissed. Relevantly, s 386(2) of the FW Act provides that a person has not been dismissed as follows:[19]
  1. However, a person has not been dismissed if:
  1. the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
  1. the person was an employee:
  1. to whom a training arrangement applied; and
  2. whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

  1.  the person was demoted in employment but:
  1. the demotion does not involve a significant reduction in his or her remuneration or duties; and
  2. he or she remains employed with the employer that effected the demotion.
  1. [39]
    These provisions are distinct from the approach taken in the IR Act. The IR Act does not identify if a person has or has not been dismissed, but, rather, as outlined above, s 315 of the IR Act, identifies classes of employees to whom s 316 of the IR Act does not apply.
  1. [40]
    Further, s 386(2)(a) of the FW Act provides that a person who has been employed for a specific period or task is not dismissed if the employment is terminated at the end of period or on completion of the task.
  1. [41]
    Unlike s 386 of the FW Act, there is no reference in s 315(1)(d) of the IR Act to a general limitation of its application based on a termination of the engagement at the end of the specific period or on the completion of the specific task.
  1. [42]
    It is at this point that the relevance of s 315(1)(d)(ii) of the IR Act must be considered. That provision does contemplate that s 316 of the IR Act applies to an employee who is engaged in a specific period or task and is dismissed before the period ends or the task is complete, however, only if the employee is participating in a labour market program.
  1. [43]
    When s 315(1)(d) and s 315(1)(d)(ii) of the IR Act are read together and in context, the provision must be construed to reflect that the class of employee who is engaged for a specific period or task is not entitled to the benefit of s 316 of the IR Act. However, the exception to this provision is an employee may be entitled to the benefit of s 316 of the IR Act if an employee is dismissed before the period ends or the task is complete and they are participating in a labour market program.
  1. [44]
    Implicit in these terms is that if an employee is engaged for a specific period or task and the employment is terminated before the end of the period or before the completion of the task and the employee is not participating in a labour market program then s 316 of the IR Act does not apply to the employee.
  1. [45]
    The identified distinction between federal and state statutory provisions, with respect to unfair dismissal, does not, however, alter the relevance of the principles enunciated by the Full Bench in Alouani-Roby.
  1. [46]
    On the basis of those principles, a contract which states a nominal expiry date may be a contract of employment for a specific period.
  1. [47]
    In her response to this application, Ms Alistair relies on the exception to s 315(1)(d) contained in s 315(1)(d)(ii) of the IR Act. That is, Ms Alistair contends that she was an employee who was engaged for a specific period or task while participating in a labour market program and she was dismissed before the period ended or the task was complete.[20]
  1. [48]
    In this regard, Ms Alistair submitted that the traineeship with the Council was a labour market program and consequently she fell within the exception contained in s 315(1)(d)(ii) of the IR Act.
  1. [49]
    "Labour Market Program" is a term defined in sch 5 of the IR Act to mean "a labour market program approved by the Minister".
  1. [50]
    The Macquarie Dictionary defines "labour market" to mean "available supply of labour considered with reference to the demand for it",[21] and "program" is defined to include "a plan or policy to be followed".[22]
  1. [51]
    A "traineeship" and a "traineeship contract" are also separately defined in sch 5 of the IR Act with reference to the Further Education and Training Act 2014, schedule 1. Schedule 1 of the Further Education and Training Act 2014 (Qld) relevantly provides as follows:

traineeship means employment-based training declared by the chief executive under section 8 to be a traineeship.

traineeship contract means a contract in the approved form for the training and employment of a person in a traineeship.

  1. [52]
    Accordingly, the IR Act treats a "labour market program" as conceptually distinct from a "traineeship". A "labour market program" ordinarily deals with the policies regarding the supply and demand of labour at a systemic level while a traineeship is employment-based training.

The Nature of the Engagement

  1. [53]
    In order to determine whether Ms Alistair was engaged for a specific period and/or a specific task, the nature of the engagement needs to be considered.
  2. [54]
    Relevantly, Ms Alistair was engaged in the position of Trainee Bus Operator Level 1 within the Council. It is not contentious that the terms and conditions of the engagement were outlined in a letter of offer sent by the Council to Ms Alistair.
  1. [55]
    By letter of offer dated 21 June 2023, the engagement was described as a traineeship in the following terms:[23]

This traineeship offers a combination of employment and training and is your opportunity to enhance your career, experience development opportunities and become a valuable Council member. Upon successful completion of all requirements you will receive a nationally recognised qualification in Certificate III in Driving Operations (TL131216).

  1. [56]
    The letter of offer also required Ms Alistair to sign a training contract between                   Ms Alistair, the Council, and the Queensland Department of Employment, Small Business and Training within 14 days.
  1. [57]
    The letter of offer set out the terms and conditions that would apply if the offer was accepted as follows:[24]

Employment Program:

Traineeship – Toowong Bus Depot

Employment Status:

Temporary full-time

Appointment Start Date:

23 June 2023

Appointment End Date:

Nominal completion date is 23 June 2025 or such lesser period as determined by your Divisional Manager or when you are deemed competent in your trade.

…

Length of your Traineeship:

Nominal Term is 24 months.

Probationary Period:

Satisfactory completion of a 90 day probationary period.

Training Components:

Prior to commencing your bus operator duties at your nominated depot, you are required to attend and successfully compete Bus Operator Induction training. Please note, you will be paid according to your commencing wage during this training.

Your initial induction training takes place over a period of 4 weeks at the training centre followed by 2-4 weeks of mentor training at your allocated depot. Progression through the course is dependent upon your passing each module. If you fail a module, such as obtaining of a heavy rigid (HR) vehicle licence, you may not be able to continue with the remainder of the course. Please note, this employment offer is conditional upon you meeting all training requirements during the Bus Operator Induction training. If you do not meet all training requirements, your employment may be terminated.

It is a condition of employment that all bus operators are available for, and proactively participate in, ongoing training and work towards achieving the required standards. Bus operators must be prepared to travel to and attend training sessions at any of our classrooms located in the Transport for Brisbane network. During training, any personal commitments must be arranged outside training times. It is essential that you are well prepared and on time for the commencement of every training session.

…

  1. [58]
    Further, the letter of offer identified that following the completion of the qualification there would be no guarantee of ongoing employment. The letter of offer also identified that if the traineeship was not completed, the contract and employment will be deemed to have been terminated.
  1. [59]
    In summary, the key matters from the letter of offer relevant to the determination of this matter include:
  1. that Ms Alistair was employed on a temporary full-time basis on a traineeship employment program;
  1. the length of the traineeship was nominally 24 months, with the completion date nominally being 23 June 2025, or such lesser period if deemed competent in the trade;
  1. even if at the end of the traineeship Ms Alistair obtained her qualification, there was no guarantee of ongoing employment with the Council; and
  1. if the traineeship was not completed or if the training contract was cancelled or discontinued then the employment would be deemed as terminated.
  1. [60]
    The nature and scope of the training contract including the terms and conditions summarised above are relevant when considering whether s 315(1)(d) of the IR Act applies in these circumstances.

Consideration

  1. [61]
    The onus rests on the Council to establish that Ms Alistair is not entitled to the benefit of s 316 of the IR Act because she was an employee engaged for a specific period or task.
  1. [62]
    The undisputed terms of the contract of employment have been referred to above. Those terms relevantly identify that the contract of employment is to operate for a period of time nominally expiring on 23 June 2025. The contract, however, does provide for other modes in which the contract of employment may be terminated earlier including, for instance, if the employee is deemed competent in their trade before the nominal expiry date.
  1. [63]
    I consider the approach of the Full Bench of the Federal Court of Australia in          Alouani-Roby is the correct approach to be applied in the circumstances of this matter. That is, it is considered that Ms Alistair's contract of employment, which is expected to terminate upon the expiry of a nominal term, is a contract for a specific period despite it referring to other modes of earlier termination of the contract by the parties. That is because the contract is expected to run for a nominal term, which is a specific period of time, regardless of whether the parties may utilise other modes to terminate the contract earlier.[25]
  1. [64]
    Accordingly, I consider that Ms Alistair was engaged for a specific period.
  1. [65]
    Further, even if that conclusion is incorrect, I consider the contract of employment also amounts to an engagement for a specific task. The terms of the contract are such that the employment continues until the nominal date to permit Ms Alistair to complete the traineeship. Indeed, the operation of the contract of employment is contingent upon Ms Alistair executing the training contract and participating in and completing the traineeship. In this sense, Ms Alistair's employment was for the purpose of her completing the task of completing her traineeship. Indeed, the contract of employment could be terminated earlier if Ms Alistair was deemed competent in her trade prior to the nominal expiry date. Accordingly, once the task of the traineeship was completed so was the employment on those terms.
  1. [66]
    On this basis, Ms Alistair was engaged for a specific task.
  1. [67]
    Having established that s 315(1)(d) of the IR Act applies, consideration must be had as to whether the exception in s 315(1)(d)(ii) applies to the circumstances of this matter. It is uncontroversial that the employment ended before the end of the specific period and before the completion of the task. Consequently, the relevant consideration is whether Ms Alistair was participating in a "labour market program".
  1. [68]
    Ms Alistair relied on an extract of an undated definition of "Labour Market Program" purportedly produced by the Australian Government in a publication titled "The Guides to Social Policy Law" as follows:[26]

'For the purposes of FA (Family Assistance) LMPs (Labour Market Programs) are

Administered by Australian Government departments, and

Designed to help meet the needs of job seekers while looking for and starting employment. 

'LMPs provide a wide range of options to help respond to job seekers' needs in a flexible and appropriate way.

Examples: Services provided include:

  • Training for unemployed people
  • Assistance to employers who give jobs to unemployed people
  • Assistance for individuals, enterprises and regions
  • Support services for unemployed people, and
  • Formal vocational training.

The objective of LMPs is to give job seekers the necessary skills and work experience to enable them to compete more equitably in the labour market and obtain secure employment.

Citation (https://guides.dss.gov.au/family-assistance-guide/1/1/1/10)

  1. [69]
    Ms Alistair contends that this definition can be relied on and submits that the traineeship that she was participating in accords with the examples of services referred to as being provided in a "labour market program" in the above definition. Whilst at a very general level the traineeship may accord with some of the services referred to as being provided for by a "labour market program", that does not mean, without any further evidence, that Ms Alistair was participating in a "labour market program" when she was engaged in the traineeship with the Council.
  1. [70]
    Firstly, the contract of employment only refers to the traineeship and identifies that the employment is contingent upon Ms Alistair signing the training contract. There is no reference in the contract to Ms Alistair being engaged in or participating in a "labour market program" as it is defined in sch 5 of the IR Act.
  1. [71]
    Secondly, the IR Act separately defines a "labour market program" and a "traineeship" and in this regard treats them as being distinct. Accordingly, in these circumstances being a party to a training contract and completing a traineeship cannot, without further information, be seen to be participating in a "labour market program". Ms Alistair would need to establish that the traineeship she was engaged in was the provision of "training services" that fell under the purview of a labour market program.
  1. [72]
    Thirdly, having regard to the definition of "labour market program" in sch 5 of the IR Act, there is no evidence that Ms Alistair was participating in a labour market program approved by the Minister. There has been no attempt by Ms Alistair to adduce evidence of the existence of or identify characteristics of the "labour market program approved by the Minister" that she contends that she was participating in.
  1. [73]
    In this regard, Ms Alistair has failed to discharge the onus placed on her to establish that s 315(1)(d)(ii) of the IR Act applies.

Conclusion

  1. [74]
    For the foregoing reasons, I consider, pursuant to s 315(1)(d) of the IR Act, that Ms Alistair was engaged for a specific period and/or specific task and consequently s 316 of the IR Act does not apply to her.
  1. [75]
    Further, I do not consider that Ms Alistair's traineeship with the Council, without any further evidence, amounted to a "labour market program" pursuant to s 315(1)(d)(ii) of the IR Act.
  1. [76]
    It is acknowledged that this decision will have the consequence of Ms Alistair not being given an opportunity to be heard with respect to why she contends she was unfairly dismissed. However, for the reasons outlined above, it is concluded that Ms Alistair falls into a class of employee referred to in s 315(1) of the IR Act who is excluded from the unfair dismissal regime.

Order

  1. [77]
    Accordingly, I make the following orders:
  1. The application in existing proceedings filed 11 February 2025 by the Respondent is granted.
  1. The proceeding, being TD/2024/73, is dismissed.

Footnotes

[1]  Brisbane City Council, 'Form 4 – Application in existing proceeding', Application in Alistair v Brisbane City Council, TD/2024/73, 11 February 2025, 4.

[2] R v A2; R v Magennis; R v Vaziri (2019) 269 CLR 507, [32] ('R v A2').

[3] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [78]; K & S Lake City Freighters Pty Ltd v Gordan & Gotch Ltd (1985) 157 CLR 309.

[4] R v A2 (n 2) [32]-[37] (citations omitted).

[5]   (2017) 262 CLR 362.

[6]   Ibid [14] (Kiefel CJ, Nettle and Gordan JJ).

[7]   Section 316 falls within Ch 8, Pt 2, Div 2 of the IR Act.

[8] Industrial Relations Act 2016 (Qld) ss 315(1)(a), 315(1)(b) ('IR Act').

[9]   Ibid s 315(1)(c).

[10] Macquarie Dictionary (online at 26 May 2025) 'specific' (def 2).

[11]   Ibid 'period' (def 2).

[12]   Ibid 'task' (def 1).

[13] State of Queensland (Cairns and Hinterland Hospital and Health Service) v Algahamdi [2016] QIRC 57; Pardal De Souza Dias v State of Queensland (Department of Environment and Science) [2024] QIRC 17.

[14]   (1994) 56 IR 102 ('Andersen').

[15]   Ibid 106.

[16]   (2024) 307 FCR 65 ('Alouani-Roby').

[17] Alouani-Roby (n 16) [53]-[55] (citations omitted).

[18] Alouani-Roby (n 16) [45]-[52] (citations omitted).

[19] Fair Work Act 2009 (Cth) s 386(2) (emphasis added).

[20]   IR Act (n 8) s 315(1)(d)(ii).

[21] Macquarie Dictionary (online at 29 May 2025) 'labour market'.

[22]   Ibid 'program' (def 1).

[23]   Brisbane City Council, 'BH-1 – Letter of offer', Affidavit of Brett Home in Alistair v Brisbane City Council, TD/2024/73, 11 February 2025, 9 ('Letter of offer').

[24]   Ibid 9-11.

[25] Alouani-Roby (n 16) [52].

[26]  Annabelle Alistair, 'Schedule A Response to Further Directions Order 5', Submission in Alistair v Brisbane City Council, TD/2024/73, 4 April 2025, [31] (emphasis in original).

Close

Editorial Notes

  • Published Case Name:

    Alistair v Brisbane City Council (No 2)

  • Shortened Case Name:

    Alistair v Brisbane City Council (No 2)

  • MNC:

    [2025] QIRC 139

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    30 May 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Alouani-Roby v National Rugby League Ltd (2024) 307 FCR 65
2 citations
Jump To
Cite 1 - (2024) 307 FCR 65
Cite 2 - (2024) 307 FCR 65
Andersen v Umbakumba Community Council (1994) 56 IR 102
2 citations
Jump To
Cite 1 - (1994) 56 IR 102
Cite 2 - (1994) 56 IR 102
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
1 citation
Jump To
Cite 1 - (1985) 157 CLR 309
Pardal De Souza Dias v State of Queensland (Department of Environment and Science) [2024] QIRC 17
1 citation
Jump To
Cite 1 - [2024] QIRC 17
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
1 citation
Jump To
Cite 1 - (1998) 194 C.L.R 355
R v A2 (2019) 269 CLR 507
2 citations
Jump To
Cite 1 - (2019) 269 CLR 507
Cite 2 - (2019) 269 CLR 507
State of Queensland (Cairns and Hinterland Hospital and Health Service) v Algahamdi [2016] QIRC 57
1 citation
Jump To
Cite 1 - [2016] QIRC 57
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
Jump To
Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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