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Tasmanian Industrial Commission

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T12300

DECISION APPEALED - SEE T12605

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

Liquor, Hospitality and Miscellaneous Union - Tasmanian Branch
(T12300 of 2005)

and

Classic Video Pty Ltd (ABN 58 009 533 715) trading as Video City

 

COMMISSIONER JP McALPINE

HOBART, 28 February 2006

Industrial dispute - application amended - alleged breach of the Miscellaneous Workers Award - Order issued

REASONS FOR DECISION

[1] On 26 September 2005, the Liquor, Hospitality and Miscellaneous Union - Tasmanian Branch (the union), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of a dispute with Classic Video Pty Ltd (ABN 58 009 533 715) trading as Video City (the respondent) arising out of an alleged breach of the Miscellaneous Workers Award.

[2] The President convened a hearing (Conciliation Conference) at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on Tuesday, 11 October 2005 at 11.45 am. Commissioner JP McAlpine convened a further hearing at the Magistrates Court, 19 King Edward Street, Ulverstone, Tasmania, on Thursday, 12 January 2006 at 12.00 noon.

[3] Mr P Tullgren appeared for the union. Mr S Bailey appeared for the respondent.

[4] Mr Tullgren asserted Jenny Ash and Ellen Speed were employees of respondent at the Upper Burnie video library, and had been for a number of years as library assistants. He further asserted that in May 2005 the rotating roster under which all the full-time library assistants had been working was changed. The change to the roster was notified to staff by E-Mail. No consultation or discussions were entered into prior to the change being imposed.

[5] The alteration to the roster resulted in both Mrs Ash and Mrs Speed working every weekend, while the other full-time library assistants rostered through the weekends. This arrangement, it was alleged, has caused considerable social and relationship depravation for the two employees.

[6] Mr Bailey for the respondent did not contest the assertions.

List Of Those Who Gave Evidence For The Union:

Ellen June Speed
Jennifer Anne Ash

BACKGROUND

[7] The union asserted the roster under which all the full-time video library assistants, including Mrs Ash and Mrs Speed, had worked was altered in May 2005. The outcome of this alteration was Mrs Ash and Mrs Speed was forced to work every weekend. The respondent's representative did not contest the assertion.

[8] The union further asserted, the other three video library assistants each rostered through weekends allowing them to have regular weekends off. The respondent's representative did not contest the assertion.

[9] It was alleged by the union that the reason for imposing permanent weekend work on the two women was because they worked under the Miscellaneous Workers Award (the award) conditions, while the other video library assistants worked under Australian Workplace Agreements. The respondent's representative did not contest the allegation. The award, at Clause19(d) provides for two consecutive days off duty in each week.

[10] The union asserted the notification of the change to the roster was from Mr Ewing, a Director of Classic Video Pty Ltd (ABN 58 009 533 715) trading as Video City, by way of E-Mail. The union could not produce a copy of the E-Mail. It was alleged by it that the assistants at the Upper Burnie video library did not have access to a printer. The respondent's representative did not contest the allegation.

[11] It was alleged Mrs Speed tried to contact Mr Ewing to discuss the roster changes but was denied access to him by his assistant, Margaret Mellick. Mrs Mellick, it is alleged, retorted to Mrs Speed " if we didn't like it, too bad".

[12] The union asserted there was no reason to change the roster in May 2005. At PN259 of transcript, Mr Tullgren put the observation:

"There was no operational need given for the alteration and none of the evidence shows anything that could be broadly described as matters which might impinge upon the operation of the business. There is no evidence that there was or is any financial reason for the change such as reductions in business or reductions in the hours of opening or similar. There is no evidence that there was or is any additional efficiency to be gained by the changes. The alteration runs contrary to the stated company policy and practice of having rotating rosters, which were a requirement when people were employed and have continued. ...."

[13] Both witnesses for the union described in detail the harrowing impact working every weekend had on their social life and personal relationships.

[14] The union argued the women did not want favourable treatment from their employer, only that they worked a roster that was equitable to the five full-time video library assistants, and where the burden of working weekends was shared equally.

[15] Mr Bailey, for the respondent, was offered the opportunity to put the respondent's case to the Commission. At PN228 of transcript, he stated:

" .... I haven't been authorized to add anything to the proceedings so I don't want to say anything if I am not required to."

[16] However, Mr Bailey did attempt to put forward an operational argument as a reason for the inequitable roster. He alleged, having to give the two women two days off in a row, in compliance with the award, caused operational problems. He contested certain business functions could not be executed if the two women had weekends rostered off. He did not substantiate his allegations with any reasoned argument.

[17] Mr Tullgren summed up by arguing that the matter before the Commission was an "Industrial Matter" as defined in the Act. He cited various authorities to support position.

[18] Mr Tullgren also argued for recognition of the "unreasonable" and "unjust" nature of the respondent's action. He again cited various authorities to support his position.

List of Authorities:

Exhibit A1 High Court of Australia, Cram; Ex parte N.S.W. Colliery Proprietors' Association Ltd (1987) 163 CLR 117 F.C. 87/030

Exhibit A2 In the Australian Conciliation and Arbitration Commission, Australian Federated Union of Locomotive Enginemen and State Rail Authority of new South Wales (C No. 1687 of 1982) dated 30 October 1984

Exhibit A3 Federal Court of Australia, Bostik (Australia) Pty Ltd and Dimitrja Geogevski No. V129 of 1992 FED No. 271 Industrial Law (1992) 36 FCR 20

Exhibit A4 Supreme Court, Qantas Airways Ltd v Gubbins and Others

Exhibit A5 Industrial Information Bulletin, Proceedings Under the Coal Industry Act 1946-1957, Coal Industry Tribunal - Long Service Leave (Engine Drivers) Award

Exhibit A6 High Court of Australia, Briginshaw v Briginshaw and Another (1938) HCA 34; (1938) 60 CLR 336 (30 June 1938)

FINDINGS

[19] The Act, at Section 3 - Interpretation, states:

" "industrial matter" means any matter pertaining to the relations of employers and employees and, without limiting the generality of the foregone, includes -

(a) a matter relating to -

(i) the mode, terms and conditions of employment; or

(ii) ...

"industrial dispute" means a dispute relating to an industrial matter -

(a) that has arisen; or

(b) that is likely to arise or is threatened or impending";

[20] The instant matter deals with unilateral changes to an already functioning roster. Rosters and rostering are part of the mode of employment. I find the matter is an "industrial matter". The inequitable, unjust and unfair treatment of Mrs Ash and Mrs Speed constitutes an "industrial dispute". Under Section 29(1) of the Act this Commission has jurisdiction over the matter.

[21] At Section 20 of the Act it states:

"(1) In the exercise of its jurisdiction under this Act, the Commission -

(a) shall act according to equity, good conscience, and the merits of the case without regard to technicalities or legal forms;

(b) shall do such things as appear to it to be right and proper for effecting conciliation between parties, for preventing and settling industrial disputes, and for settling claims by agreement between parties;

(c) is not bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just; and

(d) shall have regard to the public interest.

(2) ...

(3) In the exercise of its jurisdiction under this Act, the Commission is not restricted to the specific claim made or to the subject-matter of the claim

(4) ..."

[22] It was undisputed that the rosters were changed which imposed an inequity in the working conditions between those employees on AWA's and Mrs Speed and Mrs Ash, under the award. It is undisputed the constant weekend work has caused both social deprivation and relationship tensions for the two women. The undisputed evidence clearly shows the respondent deliberately treated the two women unfairly and unjustly, because they chose to remain aligned to the award. Indeed, the respondent's representative confirmed this as the reason behind the discriminatory action against the two employees. No evidence was educed offering any other reason for changing the rosters in May 2005 to so unfairly target these two workers.

[23] The Commission must act with equity and good conscience. It must also take into account public interest. The instant application shows blatant manipulation of employees. It shows employees being deprived of the basic expectation, that they be treated equally with others in carrying the burden of anti social working hours. Work-life balance is a significant public interest issue.

[24] I find Mrs Ash and Mrs Speed are being unfairly and unjustly treated by the respondent in having to work every weekend while other workers in a similar category are rostered to have some weekends off.

ORDER

Pursuant to s.31 of the Industrial Relations Act 1984, I hereby order that Classic Video Pty Ltd (ABN 58 009 533 715) trading as Video City, is to introduce or re-introduce a work roster that will spread the burden of weekend work equitably between all the full-time video library attendants at the Upper Burnie facility by the 1 April 2006, ensuring the requirements of the Miscellaneous Workers Award are adhered to for those to whom it applies, and I so order.

James P McAlpine
COMMISSIONER

Appearances:
Mr P Tullgren appeared for the Liquor, Hospitality and Miscellaneous Union - Tasmanian Branch
Mr S Bailey appeared for Classic Video Pty Ltd (ABN 58 009 533 715) trading as Video City

Date and place of hearing:
2005
October 11
Hobart
2006
January 12
Ulverstone