A Queensland local Council has successfully raised a jurisdictional objection to an Application for Reinstatement on the basis a Trainee was engaged for a "specific period or task" and therefore had no entitlement to seek reinstatement through the Queensland Industrial Relations Commission (QIRC).

In delivering her decision, Deputy President Hartigan has defined the terms of a "specific period or task" and "labour market program" in determining the Council's interim application to dispose of the employee's Application for Reinstatement on the basis the QIRC did not have jurisdiction to hear or determine the matter.

Her Honour had regard to a 2024 decision made by the Full Bench of the Federal Court of Australia in departing from previous decisions of the QIRC to determine that an engagement for a "specific period of time" includes an employment contract with a nominal expiry date, even where the contract has the ability to be terminated before the nominal term expires.

The employee had been engaged by the Brisbane City Council (Council) as a Trainee Bus Operator in June 2023. The employment contract was specified as temporary employment for the purposes of a traineeship, with a nominal end date of June 2025 or earlier if the traineeship requirements had been met.

However, in late 2023, the employee was suspended from her employment and became the subject of a workplace investigation and resulting disciplinary process. The Council terminated her employment on 16 July 2024, some 11 months prior to the end of the temporary employment period and before the completion of her traineeship.

The employee contended her dismissal was unfair and brought an Application for Reinstatement in the QIRC. The Council, in responding to the Application, raised a jurisdictional objection contending the employee was not a person protected from unfair dismissal because she was employed for a "specific period or task".

It has been a longstanding position in the Queensland industrial relations jurisdiction that to be engaged for a "specific period" meant that the employee must have been engaged on a fixed-term contract where employment ends by agreement on a fixed date and not earlier by the employer's initiative.

The QIRC had previously dismissed objections where the employment contract was not for a period of time that had certainty about the time of commencement and the time of completion. In making this application, the employee's temporary employment contract with a nominal expiry date that could be terminated early clearly fell far outside of the exclusion enabling the employee to make an Application.

The position adopted by the Council in raising its objection reflected its longstanding view that trainee bus operators were engaged for either a "specific period or task".

On this occasion, and in the context of new legislation, the Council contended that in light of more recent authorities, namely the decision of the Full Bench of the Federal Court in Alouani-Roby v National Rugby League Ltd (2024) 307 FCR 65 (Alouani-Roby), the historical position adopted by the QIRC should be departed from.

The QIRC has now adopted a new position, that to be employed for a "specific period" includes employment under a contract with a nominal expiry date which provides for early termination.

In applying the Federal Court's reasoning from Alouani-Roby, the Deputy President adopted the position 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. The position in Queensland now is that, at least in the context of a traineeship, a contract which has a nominal expiry date is for a "specified period" even where it provides for early termination.

The QIRC also sought to draw a distinction between the Industrial Relations Act 2016 (Qld) (IR Act) and the Fair Work Act 2009 (Cth) (FWA) in the manner in which unfair dismissals are dealt with. The Deputy President noted that the provisions excluding a person from unfair dismissal under the IR Act are not concerned with whether or not a person has in fact been dismissed, but rather they operate to identify classes of employees for whom the Application for Reinstatement jurisdiction does not apply.

The QIRC noted that an exception to the exclusion may apply where an employee is dismissed before the period ends or the task is completed, and they are participating in a "labour market program". In this case, the employee sought to rely on their traineeship being within the meaning of a "labour market program", however, did not lead sufficient evidence to prove that was the case. The QIRC identified that the IR Act separately defines "labour market program" and "traineeship" as distinct, holding that a party to a training contract who is completing a traineeship cannot, without further information, be seen to be participating in a "labour market program".

The QIRC also held that employment as a trainee was caught by a second exclusion - engagement for a "specific task". The QIRC held that a term of the employment contract was for the employment to continue until the nominal expiry date to permit the employee to complete the traineeship. It was held that completion of the traineeship was employment for a "specific task".

It is interesting to note the QIRC has adopted a new view of a "specific task" in the context of the IR Act. The Council had previously lost a 2008 appeal before a Full Bench of the Australian Industrial Relations Commission in the matter of the appeal by Brisbane City Council [2008] AIRC 358, which held that a bus operator traineeship, having characteristics similar to those of an apprenticeship, is not a "specific task" within the meaning of the (then) Workplace Relations Act 1996 (Cth). 

Local and State Government employers within the Queensland industrial relations system now have access to a broader ability to raise a jurisdictional objection to Applications for Reinstatement on the basis of a "specific period or task".

It is likely that more jurisdictional objections will now be upheld, particularly where a number of previous objections have been dismissed on the basis the temporary employment contracts provided for early termination (see, for example, the decision of the Deputy President issued prior to Alouani-Roby in Pardal De Souza Dias v State of Queensland (Department of Environment and Science) [2024] QIRC 17).

The Deputy President noted that the exclusions from an Application for Reinstatement under the IR Act operate in a distinctly different manner to the FWA because, rather than making reference to a person who has or has not been dismissed, they instead identify classes of employees to whom the reinstatement jurisdiction does not apply.

In light of Alistair, local governments across Queensland and Queensland Government employers should ensure, when considering the risks associated with a termination of employment or in responding to an Application for Reinstatement, that they carefully review the terms of the employment contract. In particular, whether an employee is engaged for a "specific period or task" or by way of a "labour market program".

Carefully considering an employee's engagement and the exclusions to an Application for Reinstatement under the Industrial Relations Act 2016 is critical for Queensland State and Local Governments in responding to unfair dismissal claims, and may assist to protect your Department or Council from costly litigation and reinstatement orders if the substantive reason for termination is held to be harsh, unjust or unreasonable.

Where employees have been engaged on outer limit contracts for a "specified period or task", the decision in Alistair may cause a change in litigation strategy for applicants, seeking instead to bring alternative applications for contravention of the general protections regime or discrimination, depending on the individual circumstances.

Colin Biggers & Paisley acts for State Government Departments and local governments across Queensland. For more insights on how this decision may support defence of an Application for Reinstatement, decision-making in effecting a termination, or for advice on managing a specific issue, contact our Employment & Safety team.