TASMANIAN INDUSTRIAL COMMISSION

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

Liquor, Hospitality and Miscellaneous Union - Tasmanian Branch
(T12431 of 2005)

and

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

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

REASONS FOR DECISION

[1] On 28 November 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 Friday, 16 December 2005 at 10.30 am. Commissioner JP McAlpine convened a further hearing on Tuesday, 17 January 2006 at 9.30 am.

[3] Mr P Tullgren appeared for the union. Mr M Tonks appeared for the respondent.

[4] The union asserted the respondent failed to afford Carla Jean Hall two consecutive days off during a work cycle on 14 occasions between November 2004 and August 2005. This failure, it asserted, was a breach of the Miscellaneous Workers Award (the award), which applied to Ms Hall at the time.

[5] Ms Hall worked as a video library attendant from July 2003 to August 2005. She worked various rosters, which gave her two consecutive days off in a work cycle. However, from November 2004 the roster was changed such that she only enjoyed single days off on one cycle followed by two consecutive days off on the next.

[6] The union sought to have Ms Hall reimbursed for 14 days wages where it alleged she should have received overtime payments. The union also sought to have the award amended to read, at clause 37(d);

"Where an employee does not receive two consecutive days off duty in each seven days the employee must be paid, for all time worked until they are given two consecutive days off, at the overtime rate set out in clause 39(a). The employee is also entitled to be absent from work, for a further two consecutive days, being the days provided for in the first paragraph of this sub clause, without loss of pay for ordinary working time occurring during such absence."

Witness for the union

Carla Jean Hall

BACKGROUND

[7] The union asserted the roster to which Ms Hall was obliged to adhere denied her access to two consecutive days off on 14 occasions from November 2004 to the end of August 2005. The respondent's representative did not challenge the assertion. The union further asserted the respondent deliberately and knowingly breached the award conditions.

[8] Ms Hall gave evidence that the change to the roster emanated from Mr Ewing, a Director of Classic Video Pty Ltd (ABN 58 009 533 715) trading as Video City. She asserted employees were directed to only contact Mr Ewing by E-Mail. She further asserted, she E-Mailed Mr Ewing to complain, but did not receive a response. It was also alleged employees were not given access to printing facilities, thus denying them the capability of retaining paper copies of correspondence.

[9] The respondent's representative, Mr Tonks, alleged Ms Hall did not complain about the changed roster and, as such, had accepted the situation. The union denied this and cited Ms Hall's uncontested evidence as proof of her attempt to contact Mr Ewing and her dissatisfaction with the situation. The union also asserted that, regardless of her action or perceived lack of action Ms Hall could not contract out of the award even by omission.

[10] At Exhibit A2, the union cited the Federal Court of Australia in the matter of the Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406 (15 November 2002). In that case it dealt with the issue of contracting out of an award; the employer argued that there was an agreement between the employer and the employees not to pay overtime. At paragraph 26 of Exhibit A2, His Honour Goldberg J confirmed the following:

" It has been well-established that it is not possible to contract out of award rights and obligations under the Industrial Relations Act 1988 ... estoppel and waiver do not apply in relation to those obligations: ..."

[11] His Honour further cited de Meyrick, "The Interaction of Awards and Contracts":

"The award is independent of contract. It is neither incorporated by statute nor by implication into the contract of employment -"

[12] The union also sought the Commission to consider s.20 of the Act in relation to this dispute. Section 20(1)(a) requires that the Commission, when exercising its jurisdiction under the Act:

"... shall act according to equity, good conscience, and the merits of the case without regard to technicalities or legal forms."

[13] The union cited the Supreme Court authority of Qantas Airways Ltd v Gubbins and Others, Exhibit A3, as an example of the application of "equity and good conscience".

[14] The union argued the Commission had the power to vary the award where there was a clear flaw in its operation. In the instant matter, Mr Tullgren alleged the respondent deliberately and knowingly breached the award with impunity. He sought a remedy to penalize employers who deliberately ignore the provision of the award relating to two consecutive days off.

[15] The union cited the cases of The Australasian Society of Engineers v Australian Gas Light Co (No. 350 of 1940), Exhibit A5, and the Wool and Basil Workers Federation of Australia v W. Foster and Company Limited 53 CAR 696, Exhibit A6, as precedents to support the concept of this Commission varying the award. From the latter exhibit, at paragraph 2, it states:

"That the Commission should not vary agreements or consent awards during their currency unless circumstances which could not have been foreseen or anticipated arise during such period, and any party thereby suffers an injustice."

[16] The union raised the issue of the consideration of public interest in support of its request to have the award varied. Mr Tullgren also made the observation that the respondent did not educe evidence from either its own or the unions witness. In taking such an action, or lack of action, the respondent, the union asserted, accepted the evidence of Ms Hall.

[17] The respondent's representative, in summing up, made the following statement;

"... It was two days off in the same period, but they were split by a day, so they were joined up by two periods to make three days off but they still had two days off in the same period. There wasn't any overtime given in that time. What has been called for doesn't have any provisions in the Miscellaneous Workers Award to pay what has been asked. There isn't any actual - I think it covers, it says, "Two days off," but it doesn't say any actions or recourse ..."

AUTHORITIES

Exhibit A2 Federal Court of Australia - Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406 (15 November 2002)

Exhibit A3 Supreme Court - Qantas Airways Ltd v Gubbins and Others

Exhibit A4 Industrial Information Bulletin, Proceedings Under the Coal Industry Act 1946-1957, Coal Industry Tribunal - Long Service Leave (Engine Drivers) Award

Exhibit A5 Conciliation and Arbitration Commission - Federated Gas Employees Union of Australia and the Australian Gas Light Company 32 CAR 112

Exhibit A6 Conciliation and Arbitration Commission - Wool and Basil Workers Federation of Australia v W. Foster and Company Limited 53 CAR 696

Exhibit A7 High Court - Mason, Brennan, Dawson, Gaudron JJ - O'Sullivan v Farrer, 168 CLR 210

Exhibit A8 High Court of Australia - Queensland Electricity Commission ex parte v The Electrical Trades Union of Australia 61 ALJR 393

Exhibit A9 High Court of Australia - Jones v Dunkel 101 CLR 298

FINDINGS

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

[19] The instant matter deals with unilateral changes to a roster. Rosters and rostering are part of the mode of employment. I find the instant matter is an "industrial matter" and constitutes an "industrial dispute". Under s.29(1) of the Act, I find this Commission has jurisdiction over the matter.

[20] It is undisputed the roster under which Ms Hall worked was changed in November 2004. The change to the roster prevented Ms Hall having two consecutive days off every week, in breach of the award.

[21] I do not accept the respondent's assertion, that Ms Hall did not complain and, accordingly, accepted the change. Although no documentary evidence was educed of her complaint, I accept this was a consequence of the respondent's information management practices. Regardless, it is established by law, a person cannot contract out of an award. The authority Givoni Pty Ltd, Exhibit A2, well illustrates this. I accept the union's unchallenged assertion this breach took place on 14 occasions.

[22] The respondent breached the award conditions by the imposition of the roster changes in November 2004, and I so find.

[23] It is evident, on the 14 occasions Ms Hall was denied a second consecutive day off she worked "outside of ordinary hours" as are prescribed in Clause 37 of the award. It follows that the provisions of clause 39 (a) would apply on those occasions.

"...for all time of duty outside of ordinary hours the rate of pay shall be time and one half for the first two hours and double time thereafter."

[24] I acknowledge Ms Hall was paid ordinary time for the 14 occasions under consideration.

[25] Mr Tullgren asserted, with respect to varying the award as he requested; "Not to grant the remedy would leave the union and Ms Hall without effective recourse in any tribunal." I agree with his assertion.

ORDER

I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, that:

James P McAlpine
COMMISSIONER

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

Date and place of hearing:
2005
December 16
Hobart
2006
January 17
Hobart