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T1374

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

 

T.1374 of 1988 IN THE MATTER OF AN APPLICATION BY THE FEDERATED LIQUOR AND ALLIED EMPLOYEES' UNION, TASMANIAN BRANCH, FOR INTERPRETATION OF THE RESTAURANT KEEPERS AWARD

RE: CLAUSE 7, DEFINITIONS, DIVISION D

PRESIDENT 28 July 1988

INTERPRETATION

APPEARANCES:
For the Federated Liquor and Allied
Industries Employees' Union of Australia
(Tasmanian Branch)
- Mr. N. J. Sherry
For the Tasmanian Confederation of
Industries
- Mr. K. Brotherson
  with
  Mrs. P. Carpay
DATE AND PLACE OF HEARING:
20.7.88                         Hobart

This application by the Federated Liquor and Allied Industries Employees' Union, Tasmanian Branch, seeks to ascertain by an interpretation of the relevant part of the Restaurant Keepers Award whether or not a number of employees working in accordance with a weekly roster are, by definition, casual or part time.

The employees exampled for the purposes of the interpretation work between 6 and 15 hours per week. Each week a roster is prepared by management for the ensuing week and exhibited for the employees' benefit. Names of "casuals" are stated on the roster. In this way individuals are given prior notice of the days and times that they will be required for the next week.

According to Mr. Brotherson the purpose of the roster is to "offer" known casual hours to nominated members of a pool of casuals. The persons nominated are not obliged to accept the work offered. Should an individual decline, for reasons of sickness or other personal reasons, the work is then given to others.

Work records tendered during proceedings demonstrated that each of three employees concerned had accepted an offer to work on a number of days each week - generally between 3 and 4 - since January 1988 at least. The only gaps in their work records, it was said, were due to illnesses or public holidays for which no payment was made.

Mr. Sherry argued that because of the "regularity" of their employment they should be regarded as part-time employees and paid accordingly. Mr. Brotherson submitted that the mere fact that casuals had accepted these regular offers of work ipso facto did not make them part-time employees.

I turn now to consider the relevant award provisions in order to discover, if possible, the intention of the award maker and whether or not he has given any discretion to an employer to roster casuals for regular weekly employment.

For the purposes of this examination only, the facts demand that any declaration must apply specifically to the employment of persons engaged as casuals or as part-time employees working in restaurants in retail stores. This interpretation applies only to Division D of the award.

This disclaimer must be clearly understood, as different definitions are to be found in Divisions A, B and C of the award.

Division D, as stated, applies to persons employed in a restaurant in a retail store.

The division contains a number of discrete provisions intended to relate solely to the persons intended to be covered in this way. Other nominated clauses found elsewhere in the award also have application including Clause 12 - Casual Employees.

However the division has a special clause dealing with part-time employees.

For convenience I now reproduce the relevant parts of the provisions for casuals, part-time employees, and the definition of casual and part-time employees set out in Clause 12, 46 and 7 of the award. Paradoxically, Clause 7 appears not to have any application, although I feel that this is clearly an oversight and is obviously intended to apply.

    "CLAUSE 12. CASUAL EMPLOYEES

(a) A casual employee (as defined) shall be engaged for a minimum period of 2 hours; each engagement shall stand alone and shall be paid at the rate of one fortieth of the weekly rate (one thirty-eighth of the weekly rate from 15 August 1988 for casual employees in Divisions A, B and C, and 15 June 1988 for casual employees in Division D) prescribed for the work he or she performs per hour, plus:-

    (i) 25% for all work performed Monday to Friday, inclusive.

    (ii) 75% for all work performed on Saturday.

    (iii) 100% for all work performed on Sundays.

    (iv) 150% for all work performed on Public Holidays. ..."

    "CLAUSE 46. PART-TIME EMPLOYEES

(a) Part-time employees (as defined) may be engaged in any of the classifications mentioned in Division D. Clause 8, provided such employee accepts employment on the following terms.

(b) The ordinary hours of work for a part-time employee shall be less than 40 per week, less than 8 hours per day, but not less than 4 hours per day; not more than 5 days per week and not less than 20 hours each week. ..."

    "CLAUSE 7. DEFINITIONS

DIVISION D

(a) A `casual employee' means any person specifically engaged to work on an irregular basis, as and when required by mutual consent between employer and employee, but does not include any person employed on a part-time or full-time basis.

(b) A `part-time employee' is one engaged to regularly work for less hours per day or week than those prescribed for full-time employees."

Clause 43 - Conditions of Employment - makes it quite clear that all employees in restaurants in retail stores shall be weekly except "employees engaged as specified in Clause 12 (Casual Employees)".

This appears to be a clear indication on the part of the award maker that full and part-time employees will be weekly with casuals being the only exception.

By definition Clause 7 is clear that the following considerations apply: A casual person must be one specifically engaged to work on an irregular basis as and when required by mutual consent.

This can be construed to mean that provided that the employment was irregular in nature, the time during which work is to be done and the days on which it is to be carried out, including the notice required to be given, could be, one assumes by mutual consent.

The definition also makes it clear that a part-time employee cannot be required to act as a casual.

A study of the definition of part-time employee discloses that whereas a part-time employee appears not to be required to work on every working day, the essential requirement is the need to work regularly for less than full time hours per day, or per week - i.e. less than 7 hours 36 minutes per day or 38 hours per week.

Clause 12 sets out the rates and conditions applicable to casuals. This clause stipulates that a casual must be engaged for a minimum period of two hours, but that each engagement shall stand alone.

For time worked on Monday to Friday a casual enjoys a loading of 25% on the ordinary time rate of pay for a full-time employee. Higher loadings apply for work done on Saturdays, Sundays and public holidays.

It is palpable therefore that in order to answer the questions asked by Mr. Sherry it is necessary to decide what is meant by the words "irregular", and "regularly", and what departures (if any) are permitted to be made to a contract by mutual consent.

The Macquarie Dictionary ascribes very few meanings to the adverb "regularly". These are:

    (i) "at regular times or intervals",

    (ii) "according to plan, custom etc."

Webster's New Dictionary of Synonyms states that:

    "a person, or more often a thing, is regular as opposed to irregular that conforms to that which is the prescribed rule or standard pattern for its kind."

The preferred analogous words given in the dictionary are:

    "usual", "habitual", "customary", "common", "ordinary" and "familiar".

The antonym is simply "irregular".

"Irregular" is explained by the Webster Dictionary to be:

    "failure to conform to a rule, a law or a pattern, especially to one imposed for the sake of uniformity in method, practice or conduct."

The Macquarie Dictionary defines "irregular" to mean, inter alia:

    "without symmetry, even shape, formal arrangement, any regular pattern".

The adjective "mutual" in the term "mutual consent" in this context is, I believe, redundant as there cannot be consent between two persons if that consent is not mutual.

"Consent" means agreement. In this case it can only mean agreement to a particular course of action. It might mean agreement to waive the giving of notice when the employee is required to work. It may mean the physical waiver of separate documentation for each engagement. But I feel it cannot mean agreement to work regularly instead of irregularly, for that would impinge upon the definition of "part time".

My dilemma in framing a firm view on this question is that which might arise from the examples given. There can be no doubt that in each situation applicable to the three employees concerned there can be discovered evidence of regular employment. In that context I use the word "regular" as an adjective to describe the incidence or pattern of employment. This needs to be further explained to mean that there is a discernible pattern of work being done almost every week for at least 3 days per week. This has continued over a period of more than 6 months.

There can be no suggestion therefore that the employment of these individuals has been irregular or spasmodic. Clearly that has not been the case at all. If one were to apply the known facts to the definition of part-time employee set out in Clause 7, the conclusion might be that each of the persons given in the example was employed on a part-time basis. However the difficulty in coming inevitably to such a conclusion arises from the proviso to subclause (a) of Clause 46 - Part-Time Employees.

According to the subclause, a part-time employee must be shown to have accepted [an offer of] employment in accordance with certain nominated terms set out in the award. These include an offer and acceptance of work of "not less than 4 hours per day [and not more than 5 days per week] an not less than 20 hours per week".

In the circumstances I conclude that in the event any or all employees concerned could produce an instrument of employment indicating that their employment has been accepted as part time, it might reasonably be assumed that the employer has not met his obligation to pay for at least 20 hours' work per week whether or not that amount of work has been done by each individual.

If no such evidence can be produced, the question must be decided in another way. The alternative test would be whether, because the employer has agreed (as implied in the definition of "casual") to offer to a small number of employees the available "casual" or "excess" hours he requires someone to work, he has thereby disqualified each and every employee to whom the offer was made from payment as a casual. This conclusion is possible because of the regularity of each engagement. In this case it boils down to 3 to 5 times per week.

There would be no question that the persons involved would be casuals if the evidence relating to those employees indicated that they had declined work when offered, or were working on an irregular basis. Similarly, in the event the employer enlarged his casual pool and allocated a few hours at a time to individuals their respective work patterns might be seen as irregular.

Looked at from a distance, I incline to the view that the award provision regarding casuals is somewhat deficient.

Unless in giving attention to those pieces of drafting that to me appear relevant I can be shown to have misdirected myself, it is difficult to determine in any conclusive way how the words appearing in the definition of casual employees, "...specifically engaged to work on an irregular basis" can be written down by the following words: "...as and when required by mutual consent between employer and employee". To do so would allow casual employees to regularly work - consistently work perhaps, to put it at its lowest level - less than the required 20 hours per week, and for that reason only, not be considered to be part time. In each case consent is required.

It is not the Commission's function to detect award breaches. That is a matter to be determined in another place. All the Commission can do is interpret the award in accordance with the now well understood canons of construction applicable to award interpretation.

As I am quite unable to respond to Mr. Sherry's question without giving a qualified answer, I decline to do so at this stage. I have, I believe, identified the tests and considerations that need to be applied. I have also pointed out an apparent deficiency in the award. That deficiency goes to the question of whether there is an option to offer all casual hours to a small number of employees on a regular basis thereby requiring those employees to work 3 to 5 days each week. Furthermore, I am of the opinion that the need for each engagement to stand alone would, in the event of challenge, need to be supportable by suitable evidence. That evidence would need to show that each engagement was separate and not merely a continuum of an earlier arrangement.

As I will be unavailable for one month following announcement of my finding, it will not be possible to issue an appealable declaration, should that be required, until early September.

In the event that a declaration is requested I should indicate now that any such declaration, however inconclusive it may prove to be, when given will be made prospective in operation.

For that reason common sense would suggest that, in the light of this finding, consultation might prove to be more profitable to all concerned in the long run.

 

L.A. Koerbin
PRESIDENT