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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Community and Public Sector Union and The Minister administering the Tasmanian State Service Act 1984
Industrial dispute - alleged breach of Operational Employees Award - underpayment of wages - arbitrated REASONS FOR DECISION This was an application for a dispute hearing made under section 29(1) of the Act by The Community and Public Sector Union (State Public Services Federation Tasmania) (the Union). The dispute related to the alleged underpayment of wages due under the Operational Employees Award (the Award) to Mrs Alma Gail Smith of Roland, a security officer at the Lake Barrington Rowing Course, employed by the Department of Primary Industries, Water and Environment (the Department). At the hearing Mr Clive Willingham represented the Minister administering the Tasmanian State Service Act 1984 (the Minister) and Mrs Simone Wolf represented the Union. Some days prior to the hearing the Union submitted a Statement of Contention which in essence, said:
Over the whole period of her employment both the Department and Mrs Smith had considered she was a casual employee. In the Award the definition for a casual employee at subclause 7(a) was:
The Award also prescribed, under paragraph 8(c)(ii) and (iii): "(ii) Casual employees are to be paid a loading of 20 percent to compensate for having no entitlement to payment for annual leave, sick leave and holidays not worked. (iii) A casual employee is to be engaged by the hour with a minimum payment of three hours for each day worked." On the basis of these prescriptions the Union requested that the Minister be ordered to pay Mrs Smith a total of $234 022 in outstanding monies due. The Union had calculated the amount by multiplying Mrs Smith's income each year by three, deleting the amount paid for that year and then adding to the nett amount each year from 1986 until 6 January 1999 (see Exhibit CPSU 15). This calculation was based on the Award paragraph 8(c)(iii) prescription that a casual employee be paid a minimum of three hours for each day worked. The Union contended that each period of work (that is, in Mrs Smith's case, one hour in the morning and one hour in the evening) should be paid for a minimum of three hours. In a letter to Mrs Smith, dated 5 November 1997, the Department acknowledged:
In June 1998, the Department advised Mrs Smith that her perceived indefinite employment status would be formalised, but, this did not eventuate. During the whole of her period of employment Mrs Smith was paid the 20 percent loading prescribed for casual employees. Mrs Smith appeared as a witness and gave evidence as to her employment history, in particular as to periods of time taken off work without pay for various reasons and as to her conviction that she was a casual employee and had been treated as such by the Department. The Union produced as exhibits in support of its submissions copies of various, intermittent pay advice slips given to Mrs Smith. The Union also referred to a number of decisions, given outside the Commission's jurisdiction, to show that Mrs Smith should have been regarded as a casual employee and not a part-time employee. The Union submitted that under the terms of the Award Mrs Smith was a casual employee and, therefore, she should be paid as such in accordance with the Award. The Minister acknowledged that all parties concerned had regarded Mrs Smith as a casual employee, but, he submitted they were wrong. The Minister referred to the casual employee definition in the Award and said that Mrs Smith's history of regular and continuous employment meant she could not be regarded as a casual employee. He said Mrs Smith had not been employed for less than five days and her periods of work could not be said to have been irregular, hence under the Award definition she was not a casual employee. The Minister submitted that Mrs Smith had been a part-time employee for the whole of her employment with the Department. He quoted the Award definition as follows:
The Minister submitted that, except for a few exceptions, Mrs Smith's unpaid absences from work were in fact authorised by the Department and would in most instances fit the Award categories of annual leave and sick leave due to a part-time employee. The exceptions mainly related to employer initiated stand-downs because of major public events at Lake Barrington. In relying on Mrs Smith's status being that of a part-time employee, the Minister conceded that retrospective adjustments in Mrs Smith's favour were warranted as a result and would be attended to. The Minister noted that the application alleged breach of the Award and referring to his experience in the Commission whereby breach of award claims were usually based on " ... evidence of the actual hours worked day by day, week by week ...", submitted that the evidence put forward by the Union in this case was insufficient to prove the allegations. Referring to the Union's claim for three hours pay for each hour worked by Mrs Smith, based upon the Award provision at paragraph 8(c)(iii) previously mentioned, the Minister submitted that the minimum payment specified therein related to the day not each shift (of one hour) in the day. The Minister rejected the Union's argument on this basis and also said that, since the Award made no provision for broken shifts, such practice was available to the Department to carry out without fear of a penalty applying. The Minister rejected the notion implicit in the Union's claim that the absence of an award prescription had the effect of proscribing the relevant practice. The Minister also relied on a November 1988 decision on appeal in the Victorian Industrial Relations Commission in Full Session1 which set out a number of tests to determine the nature of a contract of employment, but, importantly for this case also made the point, in the Minister's words that: "... . It's not the fact that the parties describe, rightly or wrongly, correctly or incorrectly, a relationship as a casual, doesn't mean that in fact is what it is under the law. That's what that's about."2 Further, in relying on those tests to show Mrs Smith was not a casual employee the Minister pointed out that in this Commission, in matter T6723 of 1997, Deputy President Johnson had adopted and specified the tests enunciated in the Victorian case for assessing whether a person was a casual employee or not:
The Minister relied on a number of other references to show that Mrs Smith, ought not be classified as a casual employee and he submitted in consequence that she was "a long term, continuing, temporary employee3". Relying on section 52(1)(a) of the Act the Minister also submitted that Mrs Smith's claim could only be taken back to commence from 1997. DECISION I am satisfied from the evidence and from the provisions of the Award that Mrs Smith was not a casual employee. I accept the submissions of the Minister that Mrs Smith was a part-time employee and in that I rely on the basic elements that her employment was regular, continuing and for less hours each day than a full-time employee. I also accept the submissions of the Minister that, in the absence of any broken shift prohibition or penalty provision in the Award, the Department was free to employ Mrs Smith in the way it did without penalty. In the context of what I have said about the Award provisions I do not consider the outside precedents relied on by the Union are relevant to this matter. It is clear, however, that the circumstances of Mrs Smith's employment, as acknowledged by the Minister, were less than satisfactory and certain corrections and settlements are due in consequence. This application will be adjourned to enable a settlement in accordance with the terms of this decision to be reached. If the parties are unable to reach a settlement on advice from the Union the hearing will be resumed.
P A Imlach Appearances: Date and place of hearing: 1 30 AILR 25 (497) |
