T12999
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TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
Construction, Forestry, Mining and Energy Union, Tasmanian Branch
and
Skilled Group Limited
Industrial dispute – alleged breach of the Zinifex Hobart Smelter Enterprise Award – application amended – Order issued – file to remain open
REASONS FOR DECISION
[1] On 17 July 2007, the Construction, Forestry, Mining and Energy Union, Tasmanian Branch (the union) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with Skilled Group Limited (the respondent) arising out of an alleged breach of the Zinifex Hobart Smelter Enterprise Award (the award) in relation to union member Grant Lockley. [2] The application was the subject of a threshold issue, resulting in a decision[1] dated 10 October 2007. The final paragraph of that decision concluded:
“The Commission will proceed with the hearing to enable the parties to complete their submission on all aspects of the application on Tuesday, 6 November 2007 at 9.30 am.” [3] The hearing set down for 6 November 2007 was subsequently cancelled and rescheduled for 13 and 14 February 2008. The hearing date for 14 February 2008 was also cancelled. The hearing continued on 8 and 22 April 2008. [4] At the commencement of the hearing on 8 April 2008, Mr B White, for the applicant, sought and was granted leave to amend the original application. He sought to alter the application to read:
“Grant Lockley was employed by SKILLED Group Limited, on hire to Zinifex Australia Ltd at the Zinifex Hobart Smelter, from pay week ending 4 March 2000 until 1 October 2005.
During that period of employment Mr Lockley was employed as an operator and paid as a casual employee.” [5] Mr J Zeeman, for the respondent, did not object to the amendment. [6] This is an alleged breach of Part II – Employment Relationship and Associated Matters, Clause 1 – Weekly Employment, of the award. [7] It was claimed that the method of employment led to an alleged breach of Part IV – Leave and Holidays with Pay, Clause 1 – Annual Leave, of the award.
CHRONOLOGY [8] On 21 September 2005, Abey C handed down a decision[2], which in part deemed that:
“… The employees of Skilled group Limited … who are engaged in the production process at the Risdon Smelter of Zinifex, are subject to the terms of the Zinifex Hobart Smelter Enterprise Award …” [9] The above decision had bearing on the instant matter. [10] Zinifex Australia Limited (Zinifex), Australian Mines and Metals Association Incorporated (AMMA), the Construction, Forestry, Mining and Energy Union (the union) and the Australian Workers Union (AWU) all appealed the decision T11848 of 2004 of Abey C to the Full Bench of the Tasmanian Industrial Commission. [11] On 13 June 2006 the Full Bench handed down it’s decision[3] in matters T12321, T12322, T12323 and T12341 of 2005, which in part confirmed that the award did in fact have “… application to … Skilled” in the circumstances outlined in T11802 of 2004. [12] At the outset of the initial proceedings of the instant matter on 2 August 2007, Mr J Zeeman, for the respondent, sought to have a preliminary question determined by the Commission before hearing argument as to the merit of the application. The threshold issue raised was, that the respondent in this matter was respondent to the federal Metals, Engineering and Associated Industries Award 1998 (the federal award) and, as such, the award should not apply. Arguments were presented to the Commission on 30 August 2007. [13] On 11 October 2007 the Commission responded to Mr Zeeman’s threshold matter. The Commission found that it was bound by the determination of the Full Bench in its decision of 13 June 2006 regarding matters T12321, T12322, T12323 and T12341 of 2005 and as such was not in a position to make any other decision on the threshold matter. Further it saw no impediment to hearing the matter in full. [14] The respondent appealed the Commission’s finding of 11 October 2007 to the Full Bench of the Tasmanian Industrial Commission. On 24 January 2008 the Full Bench handed down a decision[4] in the matter T13037 of 2007 dismissing the appeal and referring the matter back to the Commission. [15] The Commission reconvened the hearing on 13 March 2008. At that time it was noted by Mr Zeeman that the respondent had four matters directly related to the instant matter, before the Supreme Court of Tasmania. Mr Zeeman informed the hearing that:
“… they have effectively been discontinued … If you like they’re no longer on foot.” (Transcript p.1, paras 30-40, 13.3.08) [16] Mr Peter Nolan, Director – Workplace Relations with the Australian Industry Group (AIG), submitted a Statutory Declaration and gave evidence that the respondent was at all times a member of AIG, albeit by different names. This, argued Mr Zeeman, verified the respondent’s respondency to the federal award. [17] Mr White asserted and Mr Zeeman concurred, that the parties had reached agreement on the accuracy of the pay slips with regard to Mr Lockley working specific 12-hour shifts and agreement on the applicant’s period on Workers Compensation payments. (Transcript p.12, paras 20-30, 22.04.08)
CASUAL EMPLOYMENT [18] Mr White asserted the award did not provide for casual employment and cited Part II – Employment Relationship and Associated Matters, Clause 1 – Weekly Employment, of the award, where it states:
“1. WEEKLY EMPLOYMENT
(a) Employment shall be by the week and, shall be terminated by a week’s notice on either side …” [19] Mr Eaves, [20] Mr Zeeman asserted that the nature of the applicant’s employment with the respondent was as a casual employee. He cited the fact that the applicant was paid a casual loading that he was not guaranteed work and that he could choose not to take a particular assignment, all supported the notion that the applicant was a casual. [21] Further, Mr Zeeman cited a number of authorities in support of his position that Mr Lockley was a casual employee of the respondent. [22] Firstly, a decision of the High Court of Australia in matter Doyle v Sydney Steel Company Limited 1936 (Exhibit R3) suggested that the term casual worker was not capable of exact definition. [23] Secondly, a decision of the Industrial Relations Commission of New South Wales, Full Commission, in matter Ryde-Eastwood Leagues Club Limited v Roger John Taylor, IRC 1475 of 1994 (Exhibit R4) the proposition was put forward that there are two categories of casual employees:
· The first category of casual was deemed to be where there “… is no continuing relationship between the employer and the employee.”
· The second category suggested is that of “… a continuing relationship which amounts to an on-going or continuing contract of employment;” [24] This proposition is supported in the Australian Industrial Relations Commission decision of 5 March 1998, Print M8999, Australian Municipal, Administrative, Clerical and Services Union v Auscript (Exhibit R5). Mr Zeeman suggested that the latter category was applicable to Mr Lockley in the instant matter. [25] Mr Zeeman argued that a commonsense interpretation of the award was that casual employees were covered by it. He cited a decision of the Federal Court of Australia, City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 (Exhibit R6). At page 17 paragraph 53 of that decision, French J referred to the Acts Interpretation Act, he stated:
“An Award is an instrument made by an authority … and so attracts the application of the Acts Interpretation Act for the purpose of its interpretation.
The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘ … the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘ … ideas that gave rise to an expression in a document from which it has been taken’ …” [26] Mr Zeeman argued that the omission of a clause for casuals in the award, with reference to day workers and shift workers, was not conclusive. [27] Mr White stated that since Mr Lockley worked more than 36-hours per week for the majority of his employment, he could not, by definition, be a casual. [28] In his evidence Mr Lockley stated that he was available for work on the days nominated where he was not offered work at Zinifex Hobart Smelter (ZHS). This was not challenged. [29] Mr Zeeman cited Mr Lockley’s evidence where he had stated that work was “…It is not - it wasn't real regular for me, no …” (Transcript p.73, L.40, 22.4.08) [30] And “Well, you would have good runs and you would have bad runs …” (Transcript p.74, L.10-15, 22.4.08)
BREACH OF AWARD Leave [31] Mr White claimed that Mr Lockley was entitled to 24-days annual leave per year of service. He cited Part VI – Leave and Holidays With Pay, Clause 1 – Annual Leave of the Award:
“(a) Period of Leave
(i) Day Workers
A period of 19 days’ leave shall be allowed annually after 12 months’ continual service.” [32] Further at (a)(ii) – Shift Workers:
“In addition to the leave hereinbefore prescribed, shiftworkers shall be allowed 5 working days’ leave. For the purposes of this clause, a shiftworker is an employee who is rostered to work regularly on Sundays and/or holidays.” [33] Mr White argued that although Mr Lockley may have had breaks in his employment at the ZHS such breaks were at the instigation of his employer. He further argued that Mr Lockley was at all times willing and able to work and, as such, continuity of service was not compromised. [34] Mr Eaves asserted that he did not believe Mr Lockley was notified in writing that the continuity of his service at ZHS was broken during the periods when he was not assigned there. [35] Mr White further asserted Mr Lockley was not granted any annual leave, paid or otherwise, while employed by the respondent and as such was entitled to have those monies, inclusive of allowances, paid when he left the employ of the respondent on 1 October 2005.
Shift allowance [36] Mr Eaves asserted Mr Lockley was a shift worker during his time at ZHS. [37] Mr White directed the Commission’s attention to Part V – Hours of Work, Penalty Payment, Shift Work and Overtime, Clause 1 – Hours of Work, subclause (c)(i):
“A shift shall consist of not more than 8 hours inclusive of crib time.” [38] He further asserted that when Mr Lockley first commenced employment with the respondent he worked 12-hour shifts. [39] The award at Part V – Hours of Work, Penalty Payment, Shift Work and Overtime, Clause 1 – Hours of Work, subclause (d) has a provision that by agreement shifts other than 8-hour shifts may be worked, as follows:
“By agreement between the employer, union or unions concerned and the majority of employees in the section or sections concerned, ordinary hours not exceeding twelve on any day may be worked subject to:
… (iv) The terms and conditions of each proposed shift arrangement will be registered in the Tasmanian Industrial Commission ...” [40] No evidence was adduced that any such agreement had been registered with the Tasmanian Industrial Commission. [41] Mr White summarised that as there was no formal agreement for employees of the respondent to work more than 8-hour shifts at the ZHS, Mr Lockley was entitled to 4-hours overtime as well as a shift allowance.
[42] Mr White argued that Mr Lockley was entitled to a shift allowance as prescribed in Part IV - Allowances, Clause 1 – Shift Allowance of the award in calculations of annual leave. At subclause (a) it states:
“Regular shift workers included in Part III, Clause 1, Divisions 1, 2 and 3 hereof, shall be paid a shift allowance of $1.65 per week of 38 hours. This allowance shall be taken into consideration in the computation of overtime and other penalty rates and shall be included in payments for leave entitlements.” [43] The “panel” referred to is the cycle of shifts a shift worker would follow. [44] Mr Zeeman put to Mr Eaves that the agreement between ZHS and the applicant allowed for shift workers to work 12-hour shifts and be paid ordinary pay on those shifts. [45] The inflated rates, it was asserted, allowed for overtime and other penalties to be built in.
Leisure Days [46] Mr White asserted Mr Lockley was entitled to a number of leisure days, accrued over his period of time at ZHS, by dint of his shift work. [47] Mr Zeeman argued that the award does not cater for leisure days to be paid out on termination of service. He asserted the reference at Part VI - Allowances, Clause 1(f) to 14.8 hours accrued every four weeks equates to the entitlement of 24 days annual leave.
Leave Loading [48] Mr White argued that Mr Lockley should be entitled to leave loading on accrued leave. [49] Mr Zeeman asserted Part VI – Leave and Holidays With Pay, Clause 1 – Annual Leave, subclause (h)(ii) of the award stipulates a loading of 17½% on a number of allowances. He argued the award did not specify an overall premium of 17½% on paid annual leave.
Grade [50] Mr Eaves asserted (Transcript p.16, L.20-25, 22.4.08) that the ZHS “probably” provided “commencement training” to the respondent’s employees when they were assigned to ZHS. He further asserted that he was not aware of any specific training provided by ZHS to Mr Lockley. [51] Mr Holmes, a long time employee of ZHS, gave an outline of the “points system” whereby points were allocated to nominated tasks carried out by the employees. Each employee of ZHS accumulated points as they gained more skills. The points were recorded for each employee in an Employee Skills Entry database (Exhibit A8(9)). This particular exhibit showed a total of 885 points accumulated by Mr Lockley. From 10 March 2004 until 30 September 2005, while an employee of the respondent, Mr Lockley accumulated 333 points. The evidence provided shows he subsequently accumulated a further 552 points as an employee of ZHS. [52] Mr Lockley stated in his evidence :
“I didn't know at that particular time what my grade was. I still worked as a contractor, so as far as we knew, we didn't know that we got points.” [53] And when questioned what grade he thought he was, he replied:
“I'm not 100 per cent sure but I think I went to probably grade 2, or 3. I think it was 3. I'm pretty sure it was 3.” (Transcript p.61, L.15, 22.4.08)
OTHER HOST EMPLOYERS [54] Mr White asserted that during his time working at the ZHS, Mr Lockley was reassigned to other host employers on a few occasions. He argued that Mr Lockley should have maintained the conditions afforded him by the award during those times, where they were more beneficial than the other awards which may have applied. He cited s.53, of the Act to support his argument:
“53. Employment subject to more than one award
Where an employee performs 2 or more classes of work to which different awards apply, he shall, in respect of all matters (other than wages rates or piecework rates) in respect of which different provisions are contained in those awards, be deemed to be employed under such of those provisions as confer on him the greatest benefits.” [55] Mr Zeeman reiterated that the respondent’s position remained unchanged, in that it was at all material times a respondent to the federal award. [56] Mr Zeeman further argued (p.61, L.5 of transcript, 22.4.08) that:
“Now, the respondent says that despite the earlier decision of the Full Bench, not only the most recent Full Bench decision but, in particular, the earlier Full Bench decision which your Honour found you were bound to follow, we say that this particular application can be distinguished by the facts and those facts are, in that proceeding in which the appeals related, the Metals respondency simply was not raised. We say in this application it is raised. That's the distinguishing feature.” [57] Mr White claimed the respondent’s continued reliance on the federal award was a defence against the applicant’s application. [58] In the application, at Attachment A, Mr White sought the following orders:
“That SKILLED Group Limited pay to Grant Lockley 24 days annual leave plus 13 leisure days leave at the award rate for the relevant classification for each completed 12 months of service.
That SKILLED Group Limited pay to Grant Lockley 14.8 hours proportionate leave for each completed four weeks of service from 27 February 2005 until pay week ending 1 October 2005.
That SKILLED Group Limited pay to Grant Lockley leisure leave accrued between 27 February 2005 and pay week ending 1 October 2005.
That SKILLED Group Limited pay to Grant Lockley 17.5% leave loading on all annual leave entitlements.”
FINDINGSRespondent’s Business [59] The respondent is a labour-hire company. The essence of the operation is to provide “labour” to third-party businesses which may require supplementary labour for a variety of business needs. These needs may include filling temporary vacancies as a result of the absence of permanent employees for reasons such as sickness, injury, leave or where a permanent vacancy is in the process of being filled. Such activity, I believe, is a common business practice. [60] It is my understanding that to provide such “labour” the labour-hire company maintains a register of people who wish to be considered for the assignments awarded to that company, much like an agent. [61] The labour hire company tenders for the supply of labour to third-party businesses. When assignments are awarded to it, the labour hire company must balance the availability of personnel who are not on current assignments with the number and duration of assignments offered. They then offer particular assignments to the personnel available. One would assume that should a new assignment come up when a labour hire employee is already at a particular site and was about to become available, that employee would be offered the new assignment. Hence Mr Lockley’s extended periods at ZHS. [62] It is my view that the employment relationship between the personnel registered with the labour-hire company and the labour-hire company itself only exists when the individual is offered and accepts an assignment. When an individual accepts an assignment he/she then becomes an employee of the labour-hire company only for the duration of the assignment. [63] It is also my view that that relationship terminates at the cessation of the specific assignment. When not engaged in assignments those registered with the company are not employed. It is my understanding that individuals are at liberty to register with any number of labour-hire companies at any one time, improving their chance of being offered an assignment. Indeed it is my understanding that no employment restrictions are imposed on those not on current assignments.
Award Coverage [64] I turn to the matter of the applicable award. [65] In line with the findings of Abey C, in T11802 and T11848 of 2004, of 21 September 2005, and the Full Bench decision of 24 January 2008 in matter T13037 of 2007, the award had direct application to those engaged in the production of zinc at the then ZHS. The applicant was such a person. [66] In its decision it was stated by the Full Bench, at paragraph 49:
“This Commission can determine that prima facie a party is covered by an award of this Commission, whether it is a party to a federal award is a matter for determination by the Federal Court … which has been conceded by the appellant.” [67] Mr Zeeman informed the Commission that the four matters related to this application before the Supreme Court of Tasmania, are no longer on foot. [68] The onus rests with the respondent to pursue the matter of federal award respondency through the Supreme Court of Tasmania. It appears the respondent has abandoned this process. With a Full Bench decision on foot, and for want of direction from a higher court, the argument as to the respondent’s respondency to a federal award will not be addressed further in this matter. [69] The respondent employed its employees, in general under the federal award. This is understandable given the variety of assignments any single employee may be exposed to throughout their tenure with the respondent. As stated above, the nature of the respondent’s business assumes a considerable variety of clients and assignments. [70] The respondent was not a party to the award. No evidence was educed to suggest the respondent was in any way associated with the development of the award. [71] It appears the award was created as a guiding document between ZHS and the various employee unions on that site. However, being an industry award it has application to all those engaged in the “production of zinc or zinc products”. [72] The evidence clearly showed Mr Lockley to be a production worker engaged in the production of electrolytic zinc in the cell room and products of zinc ore in the casting area. By the nature of the work that Mr Lockley undertook at ZHS his activities fell within the award.
CASUAL [73] It appears, in the main, that “labour hire” employees do not perform any direct work for the labour-hire company, but generate income through the fees charged for their labour to the third party business. The general mode of employment with the respondent for this type of employee appears to be of a casual nature, in that those registered with the company are only offered work when a third party requires their services; there is no guarantee of work and no expectation of sustained or ongoing employment. This scenario was confirmed in evidence by both Mr Lockley and Mr Eaves. [74] Each period of employment is a standalone assignment with a finite duration. There is no obligation on the employer to offer a particular person registered with them any work at all, or to offer work with a particular third party business or to offer work for a particular duration. The person registered with the company is at liberty to accept or reject assignments as they arise. [75] In my view there is no doubt Mr Lockley was employed by the respondent on a casual basis, not withstanding the requirements of the award, while engaged with ZHS. Until he became a permanent employee of ZHS, Mr Lockley was at no time during his tenure with the respondent an employee of ZHS. [76] Mr White argued that because Mr Lockley had been engaged for more than 36-hours per week for most of the time he worked at the ZHS facility he could not be classified as a casual. This logic is flawed as the number of hours worked in any one week does not categorise a person as casual or otherwise. [77] In his evidence Mr Lockley indicated that engagements were by the “panel” or a multiple of panels, depending on the requirements of ZHS. He also gave evidence as to the lack of certainty of assignments. Although his engagements with ZHS could be interpreted as ongoing, there was no evidence educed to indicate that Mr Lockley was engaged in the same job or at the same location for the duration of his involvement with ZHS. [78] Again in his evidence, Mr Lockley nominated a number of different jobs he performed and the different areas in which he worked in the facility. This variety was solely driven by the requirements of ZHS, not by the respondent. Indeed the respondent had no control over the varying demands of its client. This, in my view, confirms the casual nature of Mr Lockleys employment relationship with the respondent. [79] This situation, however, does not detract from the proposition that while engaged in the “zinc production” at ZHS the award applied to Mr Lockley.
APPLICATION OF THE ZINIFEX HOBART SMELTER enterprise AWARD [80] Mr White argued that the award does not have a “casuals” clause and as such Mr Lockley should have been employed consistent with Part II – Employment Relationship and Associated Matters, Clause 1 – Weekly Employment, subclause (a):
“Employment shall be by the week ….” [81] They award specifically excludes “casuals” from benefits at Part VI – Leave and Holidays with Pay; clause 2 - Holidays with Pay, subclause (a), Clause 3 - Sick Leave, subclause (a), and at Clause 5 - Parental Leave, Part A Maternity Leave, subclause (b), at Part B Paternity leave, subclause (b) and at Part C Adoption Leave, subclause (b). If the draughters of the award specifically excluded “casuals” from these aspects of the award, they surely must have contemplated the engagement of casuals as a legitimate mode of employment. [82] A distinction must be made between Mr Lockley’s employment relationship with the respondent and the application of the award relating his conditions while working on assignment at ZHS. [83] The award was complemented under s.55 of the Act by an industrial agreement, known then as the Pasminco Hobart Smelter Agreement 2000 (the industrial agreement). Although the respondent was not a party to that agreement, the applicant was. One cannot import into an award something that is not there. However, with regard to the absence of a specific “casuals” clause in the award, I turn to the agreement for explanation. [84] The agreement, at Section 2: Employment Conditions, Clause 2.2 - Terms of Employment, subclause 2.2.2, Casual Employment, states:
“Casual employees will be employed by the hour. A loading of 20% will be paid instead of annual leave, sick leave and public holiday entitlements.” [85] At Section 1: Administration of Agreement, Clause 1.5 - Parent Award, the agreement states:
“This Agreement shall be read and interpreted wholly in conjunction with the Pasminco Hobart Smelter Enterprise Award, as varied, and where there is any inconsistency this agreement shall take precedent.” [86] It is my view that Clauses 2.2.2 and 1.5 verify the use of casual labour was contemplated in the award, albeit no clause specifically outlines terms and conditions for the engagement such a category of employee. [87] The respondent was not a signatory to the industrial agreement, although at s.55(1) of the Act, it states:
“An employee organization may enter into an industrial agreement with an employer organization or any employer or group of employers with respect to an industrial matter.” [88] The respondent was obviously unaware of this avenue of involvement. I must therefore conclude that Part II – Employment Relationship and Associated Matters, Clause 1 – Weekly Employment, subclause (a) of the award applied to Mr Lockley each time he was assigned to ZHS by the respondent.
CONTINUITY OF SERVICE [89] Mr White listed a number of dates where Mr Lockley claimed he was available for work at ZHS, but not allocated any work or was assigned elsewhere to work. He argued that it was the respondent’s actions which saw breaks in Mr Lockley’s service at ZHS and, as such, his service should be deemed to be continuous. [90] As stated above the respondent had no control over the needs of its client ZHS. It was fortuitous for Mr Lockley that assignments were continually made available to him at the ZHS site. It is not beyond the realms of probability that in other circumstances he may have never been offered work twice with the same host employer. [91] Mr White further argued that the respondent did not challenge any of the dates Mr Lockley maintained he was available. I do not accept that one can interpret the lack of challenge to Mr Lockley’s availability as the respondent accepting Mr White’s position. [92] As stated above the respondent was not obliged to offer Mr Lockley work at a particular host employer. When an assignment came to an end Mr Lockley left the employ of the respondent; that is, at the respondent’s discretion, until he is offered and accepts a further assignment. [93] In his evidence, Mr Lockley thought there were some days when he was not available. When asked the following questions by Mr White, he responded:
“And the last one, 1 October 2005, that was the final week of your employment, do you remember what day you finished? … No, I don't, sorry.
So you may not have been available to work the full week? … Oh, I presume not, no.” (Transcript p.53, L.45, 22.4.08) [94] And further:
“Oh, if I had have (sic) fell sick or, you know, there was - I had to go to a funeral, or something like that, or if I had to have another operation it's obvious I wouldn't have been available to work.” (Transcript p.51, L.25-30, 22.4.08) [95] In my view Mr Lockley’s asserted availability is not verifiable. Further, with the nature of Mr Lockleys employment with the respondent, I do not see his perceived availability as relevant. [96] At Part IV – Leave and Holidays with Pay, Clause 1 – Annual Leave, subclause (d) Calculation of Continuous Service, of the award, it states:
“For the purposes of this clause, service will be deemed to be continuous notwithstanding:
(i) any interruption or termination of the employment by the employer if such interruption or termination has been made merely with the intention of avoiding obligations hereunder in respect of leave of absence;” [97] From evidence, Mr Lockley was assigned to a job as and when a job became available. When a particular assignment was completed, in the main, he was offered another assignment and so it went on throughout his tenure with the respondent. On occasions those assignments were at facilities other than ZHS. At ZHS the assignments varied in task and location. [98] The respondent had no control over the requirements of ZHS on a daily basis, as to its demand for supplementary labour. There was no evidence educe to suggest the respondent attempted to avoid obligations under Part IV – Leave and Holidays with Pay of the award. [99] It is my view that the respondent sought to utilise Mr Lockley as and when assignments were available either at ZHS or elsewhere. [100] I also note at Part III, Wages and related Matters, Clause 3 – Service and Experience Payment, the last paragraph defines continuous service as:
“Continuous service for the purpose of this clause means continuous service with the recognised employer in the industry for which this award is established.” (Commission’s emphasis) [101] My understanding is, the award was “established” for the ZHS and its predecessors. As stated above, Mr Lockley, while employed by the respondent, was never an employee of ZHS or its predecessors. [102] As previously stated, Mr Lockley’s employment with the respondent was governed by the availability and duration of assignments and, as such, his continuity of service with the respondent only lasted as long as each assignment. Now, in contrast, had Mr Lockley been engaged as a temporary employee directly by ZHS and ZHS sought to “roll over” each assignment as it came to an end over the three years of his involvement, then there may have been a case to consider continuity of employment. [103] In my view the difference in the two scenarios is the degree of control over Mr Lockley’s assignments exercised by the employer. The respondent was totally dependent on being assigned positions to fill by ZHS and other third party employers.
ANNUAL LEAVE [104] I will now address the accrual of annual leave. The award states at Part VI – Leave and Holiday with Pay, Clause 1(a)(i) Day workers:
“A period of 19 working days’ leave shall be allowed annually after 12 months’ continuous service …” [105] If, as I believe to be the case, Mr Lockley’s employment with the respondent ceased at the end of each assignment and was re-established at the commencement of the next assignment, and those assignments were for less than twelve months, then it follows he did not meet the criteria of 12 months’ continuous service to qualify for annual leave. [106] However, at Part VI – Leave and Holiday with Pay, Clause 1(i) Proportionate Leave on Termination of Service, it states:
“If after 4 weeks’ continuous service in any qualifying 12 monthly period an employee leaves their employment lawfully in accordance with the provisions of Part II, Clause 1, subclause(a) therefore, the employee shall be paid at the rate of wage as provided by subclause (h) above as follows:
… (ii) Shift workers – 14.8 hours for each completed four weeks of continuous service.” [107] If it can be demonstrated that Mr Lockley completed four weeks’ continuous service during any of his assignments with ZHS, he is entitled to take advantage of this clause.
LEAVE LOADING [108] I now turn to the annual leave loading. The award states at Part VI – Leave and Holiday with Pay, Clause 1(h) Payment for Period of Annual Leave at subclause (iii):
“In addition each employee shall receive a loading of 17½% on payments made under the provision of Part III, Clause 3 Service and Experience Payment, for the period of annual leave” [109] At Part III – Wages and related Matters, Clause 3 - Service and Experience Payment the award provides a list of extra payments to be made after an employee has served a minimum of six months’ continuous service to which 17½% is added when taking annual leave. [110] It is my belief that Mr Lockley did not meet the criteria for this payment. Further, there is no mention in the award of a 17½% loading applying to any payments other than those prescribed in Part III – Wages and related Matters, Clause 3 - Service and Experience Payment.
SHIFT ALLOWANCE [111] It was shown that the respondent did not have an agreement with the applicant, as prescribed in the award at Part V – Hours of Work, Penalty Payments, Shift Work and Overtime, Clause (1)(d), which would have allowed for the applicant’s members to be engaged on 12-hour shifts arrangements. I have no doubt the respondent was not aware of the necessity for such an arrangement. The applicant has entered into the prescribed agreement with ZHS, and I conclude is not averse to such arrangements. There is no evidence the applicant made any attempt to seek such arrangement with the respondent, nor bring their attention to its existence. [112] Mr White sought to have the shift allowance applied to any leave Mr Lockley had accrued in accordance with Part VI – Leave and Holidays with Pay, Clause1(b) – Annual Leave Exclusive of Public Holidays. In my view Mr Lockley is entitled to such payments on any annual leave owed to him.
NOTICE [113] Mr White argued that the respondent breached the award in not giving Mr Lockley notice in writing each time his assignment ended. He argued that the absence of specific written notice entitled Mr Lockley to continuity of employment throughout his tenure with the respondent while at the ZHS facility. [114] The award states at Part II – Employment Relationship and Associated Matters, Clause 1 – Weekly Employment, subclause (a):
“… shall be terminated by a week’s notice on either side …” [115] There is nothing in the award stipulating that notice must be in writing. Mr Lockley, from his own evidence and that of Mr Eaves, was engaged and re-engaged by the respondent over a period of some three years. He was notified prior to commencing each engagement of the duration of such an engagement. It is my view that this prior notification as to the end date to each assignment constitutes legitimate notice. [116] Unless it can be demonstrated that Mr Lockley was engaged for less than a working week, the respondent has satisfied the notice requirements.
LEISURE LEAVE [117] Mr White sought to have 13-days of leisure leave awarded to Mr Lockley for each completed 12-months’ service. I have already addressed Mr Lockley’s lack of continuity of service. Like “casual” employment, the award is somewhat mute on the topic of leisure days. There is a reference to “rostered days off” for shift workers in Part VI – Leave and Holidays with Pay, Clause 2(b), however no specific clause addressing such payments. [118] As stated above one cannot import a clause into an award. Consequently there is no provision to pay accrued leisure leave on termination.
GRADE [119] Mr White also argued that Mr Lockley had attained some 885 skills points during his various engagements at ZHS. I accept the representation at Exhibit A8(9) of the computer based points tally. In evidence it was shown that Mr Lockley earned 333 points whilst on assignment at ZHS from the respondent. According to Part III – Wages and related Matters, Clause 2 – Classification descriptors of the award, Mr Lockley would have reached a maximum of Grade 2 prior to resigning. [120] Mr Lockley was not aware if, indeed, the points system applied to him while he was a “contractor”. The award does not discriminate between ZHS employees and “contractors”, hence Mr Lockley should be recognised as having attained Grade 2 during the time in question.
Section 53 of the Act [121] By nature of the respondent’s business, employees may engage in a number of different categories of work requiring a range of skills for various third-party businesses. This, by its nature, would suggest that at different times and with different third-party businesses the employees of the respondent would enjoy different levels of remuneration depending upon the task to which they were assigned. [122] Mr White argued that according to s.53 of the Act, Mr Lockley should at all times have been afforded the conditions of the award regardless of where he worked. [123] Section 53 of the Act states:
“Where an employee performs 2 or more classes of work to which different awards apply, he shall, in respect of all matters (other than wages rates or piecework rates) in respect of which different provisions are contained in those awards, be deemed to be employed under such of those provisions as confer on him the greatest benefit.” [124] If Mr White’s argument is sustainable it would mean that an employee of a labour hire company such as the respondent, who had worked any time at all under a beneficial award and was re-assigned to any number of third-party businesses under a less beneficial award would be entitled to the superior benefits on an ongoing basis. In my view this argument is not sustainable. [125] A review of the second reading speech of the Industrial Relations Amendment Bill 1997 (No.28) does not clarify the intent of the clause. [126] It is not for this Commission to second guess the legislators intentions, however one must apply commonsense and a practical industrial context. An example of this is the Miscellaneous Workers Award, No.1 of 2008 (Consolidated) where at Clause 19 - Mixed Functions, it states
“An employee engaged for more than 3 hours in any one day on duties carrying a higher rate than his or her ordinary classification shall be paid the higher rate for the whole of such day.” [127] In my view this “Mixed Functions” clause is a development of s.53 of the Act. In this example it is reasonable that benefits of changed employee conditions apply on the day where they occur and each work day would be treated separately. [128] Further, although the award applied to Mr Lockley while he was “engaged in the production of electrolytic zinc or zinc products” his employment ceased at the termination of each assignment. Mr Lockley was re-engaged by the respondent as and when he accepted a new assignment. The terms and conditions of each new assignment were stand alone, notwithstanding the implications of the award. It follows that Mr Lockley accepted the terms and conditions of each individual assignment; had he not, he was at liberty to decline participation in the assignment. [129] It is my view that s.53 of the Act should not be applied in the circumstances pertaining to Mr Lockley as sought by Mr White.
Summary [130] Mr Lockley was a casual employee of the respondent, however, when engaged on assignment at ZHS the award applied with respect to “weekly employment”, Part II – Employment Relationship and Associated Matters, Clause 1(a), and I so find. [131] Mr Lockley’s service with the respondent was for the duration of each discrete assignment, and I so find. [132] Where Mr Lockley’s assignments are shown to be of a duration of four weeks or more, he is entitled to proportionate annual leave as defined in Part VI – Leave and Holidays with Pay, Clause 1 – Annual Leave, (i) – Proportionate Leave on Termination of Service, (ii) – Shift Workers, and I so find. [133] Where Mr Lockley is entitled to proportionate annual leave and provided he meets the other criteria, he is to receive a percentage of the allowances defined in Part III – Wage Rates and Related Matters, Clause 3 – Service and Experience Payment, applicable to such leave, and I so find. [134] Where Mr Lockley is entitled to proportionate annual leave, he is to receive any shift allowances defined in Part IV – Allowances, Clause 1 – Shift Allowance, subclause (a) and/or (b) as applicable to such leave, and I so find.
ORDER [135] At the conclusion of the hearing, Mr White requested in part that:
“The parties are to calculate what that claim would be and if we can't agree on the quantum we are open to come back to the commission to argue the quantum in front of you, Commissioner.” (Transcript p.70, L45, 22.4.08) [136] I accede to Mr White’s request and Order the parties to confer on the quantum of any payment due to Mr Lockley. [137] I leave the file open for the Commission to intercede on the invitation of either party should the parties fail to reach agreement on the quantum of payment.
James P McAlpine
Appearances:
Date and Place of Hearing: 1 T12999 of 2007 dated 10 October 2007 2 T11802 and T11848 of 2004 dated 21 September 2005 3 Full Bench decision T12321, T12322, T12323 and T12341 of 2005 4 Full Bench decision T13037 of 2007 |