Australian Federated Union of Locomotive Enginemen v State Rail Authority of NSW

Industrial Relations Commission (NSW)|2000-03-30|Before: Sams DP, Cullen J

CITATION : Notification under section 130 by the Australian Liquor, Hospitality and Miscellaneous Workers Union, Liquor and Hospitality Division, New South Wales Branch of a dispute with Parramatta Leagues Club Ltd re reduction of hours [2002] NSWIRComm 208 NOTIFIER: PARTIES : Australian Liquor, Hospitality and Miscellaneous Workers Union, Liquor and Hospitality Division, New South Wales Branch RESPONDENT: Parramatta Leagues Club Ltd FILE NUMBER: 810 of 2002 CORAM: Sams DP Industrial dispute - casual employment - hours of work - contract of employment - offers of permanent employment - management prerogative - employee's loss of earnings - custom and practice - power to make dispute orders under s136 of the Act - notice of motion - whether proceedings frivolous and/or vexatious CATCHWORDS : Held, power to make orders relating to hours of work - no issue of management prerogative - casual employees cannot insist on fixed hours of work - award provisions to apply - permanent employment should be accepted - order refused on merit - proceedings not frivolous and/or vexatious - notice of motion dismissed - recommendation made - proceedings concluded. LEGISLATION CITED : Industrial Relations Act 1996 Australian Federated Union of Locomotive Enginemen v State Rail Authority of NSW (XPT Case) (1984) 295 CAR 188 Markonski v Catolina Country Club [2000] NSWIRComm 1034 (30 March 2000), Connor C Re Cram & Ors, Ex parte NSW Colliery Proprietors Association & Ors 21 IR 165 Morts Dock and Engineering Co Ltd v the Federated Ship Painters and Dockers Union of Australia (1954) 79 CAR 254 CASES CITED : Pickering & Skilled Communications Services Pty Ltd and other matters [2002] NSWIRComm 1033 (29 March 2000), Murphy C Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 Shop, Distributive and Allied Employees' Association, New South Wales & SmithKline Beecham (Australia) Pty Ltd [2000] NSWIRComm 1089 (26 July 2000), McLeay C Richard Sharma and IBM Australia Limited [1989] NSWIRComm 515 (18 September 1989), McLeay C Ambulance Service of New South Wales and Health and Research Employees Association [1992] NSWIRComm 1 (21 February 1992), Cullen J New South Wales Teachers Federation v Secretary, Ministry for Education and Youth Affairs (No1) 35 IR 243. HEARING DATES: 07/05/2002; 08/16/2002 DATE OF JUDGMENT: 10/11/2002

NOTIFIER: Mr C Acev (Australian Liquor, Hospitality and Miscellaneous Workers Union, Liquor and Hospitality Division, New South Wales Branch) LEGAL REPRESENTATIVES: RESPONDENT: Mr E Jones (Agent) Ms L Richardson (Parramatta Leagues Clubs Ltd)

JUDGMENT: - 23 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP

Matter No IRC02/810 Notification under section 130 by the Australian Liquor, Hospitality and Miscellaneous Workers Union, Liquor and Hospitality Division, New South Wales Branch of a dispute with Parramatta Leagues Club Ltd re reduction of hours. DECISION [2002] NSWIRComm 208

1 On 14 February 2002, the Australian Liquor, Hospitality and Miscellaneous Workers Union, Liquor and Hospitality Division ("the Union") notified of a dispute, pursuant to section 130 of the Industrial Relations Act 1996 ("the Act"), with Parramatta Leagues Club Ltd ("the Club").

2 The dispute concerned the Club's intention to change the roster of Ms Carol Connal from her regular pattern of casual employment of 32 hours Thursday to Sunday to permanent part-time or full time employment. Ms Connal is employed as a Gaming Attendant and has worked a regular pattern of hours for some years. The Union contended that the Club had not established a "demonstrable need" to change Ms Connal's hours. The result of the change would significantly reduce Ms Connal's income because of the loss of the casual loading and reduced weekend penalty rates.

3 The Club maintained that Ms Connal has the option of remaining as a casual employee or accepting full or part time permanent employment. However, if she opts to remain as a casual employee, the Club cannot guarantee her fixed hours from Thursday to Sunday. Future offers of casual employment would be based on the "operational needs of the Club."

4 Thus, the parties were in dispute. Following a number of compulsory conferences convened by the Commission, the dispute remained unresolved.

5 On 29 April 2002, the Commission made a finding of unsuccessful conciliation, in accordance with s135(2) of the Act and provided a Certificate of Unsuccessful Conciliation to Wright J, President. In doing so, I listed the matter for arbitration on 5 July - a second day (16 August) was required. Directions were issued for the filing and service of affidavit evidence and the proposed orders sought by the Union.

6 The Club filed a notice of motion on 29 April 2002, seeking the dismissal of the proceedings, pursuant to s162(2)(h) of the Act, and for consequential orders - the effect of which would be to adopt the Club's position in the dispute. The Commission will later deal with the notice of motion in the substantive body of this decision.

7 The Union requested the Commission make the following order: The respondent maintain the contract of employment of Carol Connal as agreed to between the parties, being 32 hours per week as a casual employee to be worked on Thursday, Friday, Saturday and Sunday of each week. (Ex "1")

8 In support of its case, Mr Acev, for the Union, called affidavit and oral evidence from Ms Connal and subpoenaed a former supervisor at the Club, Mr J Mehaffy. Ms Connal's evidence may be summarised as follows.

9 Ms Connal commenced employment as a casual employee on 13 July 1990. Her initial duties were in the bar and TAB where she averaged 40 hours per week. After about four weeks the "Kicks" nightclub was opened and for two years Ms Connal worked regular hours in the nightclub, Wednesday to Sunday, as the supervisor. She trained two other employees as supervisors. Just prior to the nightclub being closed, Ms Connal was found other work in the Club. She retained her Wednesday to Sunday shifts with the occasional Tuesday shift.

10 In April 1993, Ms Connal moved to the Central Coast. She was considering resigning at this time. The rostering supervisor, Mr Gary McCullen approached her and it was mutually agreed her hours would be compressed into four days (about 36 hours) Thursday to Sunday. As a result Ms Connal's travelling time was cut. However, she didn't consider this arrangement a favour from the Club.

11 In 1997, Ms Connal was informed by a supervisor, Mr Paul Barnett that she was to lose her Sunday shifts as the Club was employing more permanent staff. Ms Connal spoke to the General Manager, Mr Dennis Fitzgerald and complained that this would affect her financially. She asked to remain as a casual. The Club agreed.

12 Thereafter, Ms Connal worked at the change counter between the hours of 10.00am - 6.30 pm on Thursday and Friday. On Saturday and Sunday she worked in the safe area between the hours of 7.00am - 3.30 pm. When the Thursday/Friday safe assistant duties became vacant, Ms Connal assumed them. She commenced work an hour earlier on the Saturday and Sunday shifts. When the Club commenced twenty-four hour trading, all Ms Connal's shifts changed to 6.00am - 2.30pm, Thursday to Sunday.

13 On 7 December 2001 Ms Connal received a letter from the Club offering her full time or part time employment and requiring her to reply by 17 December. The Club said that changes were necessary because of Government restrictions on the Club's operating hours. The letter explained that part time hours would range between 8 and 37 at a rate of $13.22 per hour, plus penalties and allowances. However, Ms Connal was offered a rate 15per cent above the hourly rate. The full time weekly rate of pay was $506.20. Ms Connal's current gross earnings were $735.10 per week. The weekly rate would result in a loss of $229 per week.

14 Ms Connal said she could not meet her mortgage commitments with such a loss of earnings. To meet her commitments, Ms Connal said she would have to get another job or work two jobs. She had no cash reserves.

15 Ms Connal said she was never provided a draft roster, which she could test against her current earnings. She had rejected the offer of permanent employment for that reason. Ms Connal said she was never made an "honest offer" by the Club. She could not play "russian roulette" with her home.

16 Ms Connal said she never told the Club that she was only available for work on Thursday through to Sunday. It was the Club which had allocated these days to her. She had not "dictated" to the Club as to what hours she would work. Ms Connal said she had not refused to work a rotating shift - rather no alternatives were offered by the Club. She would be happy to work 32 hours as a casual on Monday to Friday.

17 Ms Connal said that in a meeting with the Club on 29 November 2001, she could not recall whether it was explained that hours had to be reduced for "operational needs." She said no documents were given to her to explain the Club's requirements.

18 Mr John Mehaffy was subpoenaed to give evidence. The Club employed him as senior Duty Manager from 1982 to 2000. His duties included staff rostering. Mr Mehaffy regarded Ms Connal's level of competence as very good, although she wasn't "the most popular person in the place."

19 Mr Mehaffy gave evidence that the clearance team's functions altered when poker machines changed from coins to notes in 1992. This resulted in different security arrangements.

20 Ms Connal worked from Thursday to Sunday and was the only casual employee in the clearance team. However, Mr Mehaffy was unsure why this pattern of work was established. During his employment, Mr Mehaffy said Ms Connal never demanded she only work four specific days. He agreed there had been attempts to change her roster. However, nothing had eventuated.

21 In his submissions, Mr Acev traced Ms Connal's employment history from July 1990. Since 1997 she had worked her present hours on Thursday to Sunday as a casual employee. He described it as a contract of employment forged out of negotiation, offer and acceptance. The Club now sought to unilaterally alter the contract. Mr Acev put that Ms Connal was never provided with an indicative roster which she could assess against her current earnings.

22 Mr Acev submitted that, despite previous attempts by the Club to alter Ms Connal's employment arrangements, nothing had ever happened. He said it was unarguable that Ms Connal was an efficient and highly respected employee. She had enjoyed regular and predictable work based on ongoing offers of employment and acceptance of such offers. Mr Acev said it was absurd to suggest Ms Connal "dictated" her terms of employment.

23 Notwithstanding the award provisions, Mr Acev said that Ms Connal's employment was a common law contract of employment. The Award does not prohibit her arrangements, which were established through consultation with none other than, the General Manager of the Club. The Club had preferred her to remain as a casual, her consent was given and her contract of employment remained on foot for five years. Mr Acev agreed that had Ms Connal refused to work a shift based on this contract, it would represent a repudiation of the contract of employment. However, she had never done so.

24 Mr Acev submitted that the Club had been repeatedly asked to establish a "demonstrable need" to change Ms Connal's hours. The only rhetorical answer was - the operational needs of the Club. Nothing more specific was ever put. Mr Acev said that management prerogative does not absolve the employer from acting fairly and reasonably. He cited Australian Federated Union of Locomotive Enginemen v State Rail Authority of NSW (XPT Case) (1984) 295 CAR 188.

25 Mr Acev said there was no direct evidence of Ms Connal being afforded preferential treatment, which was resented by other employees. No employees had complained about her work arrangements.

26 Mr Acev provided various calculations based on particular assumptions which demonstrate that Ms Connal's loss of income as a result of a change to permanent employment, may be between $188.76 and $234.00 per week.

27 The Club relied on the affidavit and oral evidence of three witnesses: - Ms Lucy Jane Richardson (Human Resources Officer) Ms Jacqueline Eileen Matthews (Gaming Manager) Mr Denis William Fitzgerald (General Manager)

28 Ms Lucy Richardson gave evidence that on 13 July 1990 Ms Connal applied for part time or casual employment with the Club. Since that time, Ms Connal had performed a range of duties including bar service, gaming attendant, cashiering and safe assistance.

29 In November 2001, Ms Connal expressed concern to Ms Richardson about her duties, saying she spent too much time on the gaming floor, when she might be better utilised in the safe area. Ms Richardson discussed the matter with Ms Matthews.

30 A meeting was organised on 29 November involving Ms Richardson, Ms Matthews and Ms Connal. Ms Richardson made notes. She said the meeting discussed the direction the gaming department was heading, the Club's move to more part-time and full time employment and the consequent reduction in hours for casuals. The Club wanted to secure permanent positions as a result of the changes. Ms Richardson said that Government legislation would restrict the Club's opening hours. She agreed however, there would be no significant reduction in actual operating hours.

31 Ms Richardson said Ms Connal's response at the meeting was that the Club could afford to keep her working as a casual.

32 Ms Richardson agreed that Ms Connal had worked the same hours, Thursday to Sunday for five years. However, there was no written or verbal agreement which guaranteed this arrangement would continue indefinitely.

33 Ms Richardson agreed the rosters are set and prepared by the employer and that Ms Connal was directed to work the hours required by the employer.

34 On 7 December 2001, Ms Connal was offered a choice of part time or full time employment in the clearance team on a rotating roster. In addition a 15 per cent loading would be paid. This was an amount paid to casual employees who transferred to part time permanent employment between July 1999 and January 2000, in accordance with the relevant Award provision. (cl 10.2.12)

35 Ms Richardson agreed the letter provided to Ms Connal did not refer to the frequency of hours or days of work. She said Ms Connal would have been able to work it out. Ms Richardson agreed that the offer of part-time work was for 8 - 37 hours per week. However, she said that by accepting full time employment, Ms Connal's hours would actually increase by 6 hours.

36 Ms Richardson spoke to Ms Connal on 14 December 2001. Ms Connal told her she had not made up her mind. Ms Richardson gave her until 17 December to do so because the Club wished to advertise for the position. Ms Connal did not respond.

37 Ms Richardson spoke to Ms Connal again. Ms Connal said she rejected the offer as she already had guaranteed casual hours. Any change to full time work would result in her earning less than a casual employee and she couldn't afford it.

38 A meeting with the Union was held on 15 January 2002. Still no agreement could be reached. The Club however agreed to maintain the status quo until the dispute was resolved.

39 On 1 March 2002, another meeting was held with the Union at which Mr Acev asked for a copy of a draft rolling roster. This had been provided. The Union has not responded to it.

40 An amended offer was made to Ms Connal in April 2002. This enabled her to work her chosen four days a week. Ms Richardson said this offer was also rejected.

41 Ms Richardson said the Club employs 295 persons - 65 casual employees, 86 part-time employees and 144 full time employees. She said the business could not function if employees dictated what hours and days they would work. Past attempts had been made to change Ms Connal's roster. However, all proposals had been resisted.

42 Ms Richardson attached a survey to her affidavit which disclosed that only one of the seven employees in the clearance team did not want to work on weekends. Ms Richardson said other members of the clearance team had requested additional weekend shifts. However, at the moment the roster was framed around maintaining the status quo.

43 Ms Richardson agreed that the opportunity to work overtime was rare. However, additional shifts might be available for Ms Connal to fill in for other employee absences. Ms Richardson agreed that, as it stands, the only person in the clearance team who would lose hours would be Ms Connal.

44 Ms Richardson said the requirement to reduce Ms Connal's hours was to achieve "a fair and equitable workplace." She said it was not based on any financial imperative.

45 Ms Jacqueline Matthews gave evidence of an audit of the Club's gaming machine clearance procedures conducted by consultant, Barrington's, in March 2000. The audit resulted in the introduction of the clearance team and increased the number of staff able to count the clearance from four to ten. The audit report did not recommend any reduction in the hours worked by staff. It did not result in any changes to Ms Connal's hours or working days. The report did not recommend a change to Ms Connal's status of employment.

46 In January 2001, the safe area functions came under the control of the gaming department.

47 A further audit in 2001 accelerated a shift to full and part time permanent positions; a shift which had been occurring across all areas of the Club.

48 Ms Matthews said most of the clearance team preferred a rotating roster, which spread weekend and weekday work. She said casual employees preferred the permanency of full or part time work with rosters set four weeks in advance and with entitlements to sick leave. Ms Matthews said it provided more stability for employees. Various full and part time positions had been offered to Ms Connal over the past eighteen months. However, she had not applied for any position.

49 Ms Matthews referred to a performance issue concerning Ms Connal in March 2001. About this time, Ms Matthews spoke to Ms Connal about a permanent position. However, Ms Connal disputed her proposed duties and claimed Mr Fitzgerald had asked her to carry out other duties. Ms Matthews spoke to Mr Fitzgerald about the matter. He had said he had not agreed to Ms Connal working set duties or hours.

50 No further action was taken until November 2001 when the new Human Resources Manager, Lucy Richardson, discussed with Ms Connal her duties and status. At about this time, the New South Wales Government announced legislation which would prevent clubs and hotels from operating twenty-four hours a day from April 2002.

51 Ms Matthews said this change had implications for the clearance team and as a result Ms Connal was offered permanent work. Casual hours would be reduced across the board, particularly in the clearance team. The skill level in the team had also increased over this time, reducing the dependency on a few employees in the team. As a result of the changes some employees who resigned had not been replaced. Working hours had also decreased in the early part of the day.

52 Ms Matthews gave evidence of the meeting on 29 November with Ms Connal. She said Ms Connal was advised of the Club's concerns. Ms Matthews couldn't recall if Ms Connal asked for a draft roster. She said Ms Connal wanted to know her indicative wage as her primary concern was a financial one.

53 The Club's motivation was to incorporate Ms Connal into the clearance team rotation. This included working outside the safe area. Ms Matthews agreed the roster did not rotate exactly.

54 Despite Ms Connal working set hours for five to six years, Ms Matthews said she commenced talking to her about her status in late 2000. Ms Matthews denied telling Ms Connal she would be reduced to three hours if she didn't change to permanent employment.

55 Mr Denis Fitzgerald referred to the hiring of Ms Connal in July 1990. He said there was no letter of offer confirming her employment. While not being personally involved in hiring Ms Connal, Mr Fitzgerald said he had not made any offer to Ms Connal that she would be permanently employed as a casual for 32 hours from Thursday to Sunday. No contract of employment was ever offered on such terms.

56 While not directly involved with the employment of staff, Mr Fitzgerald said he had examined the times and wages records over the last five years to confirm Ms Connal was engaged, and paid as a casual employee.

57 Mr Fitzgerald said work as a casual employee was dependant on the operational needs of the Club and was affected by such matters as changes to gaming legislation, promotional activities and renovation or refurbishment of the Club's premises. Mr Fitzgerald said there was no agreement, representation or guarantee that the working times of a casual employee would be permanent.

58 Mr Fitzgerald agreed that Ms Connal had approached him in 1997 indicating she wished to continue work as a casual on weekends because of where she lives. Mr Fitzgerald agreed that Ms Connal's roster arose from discussion with him. He agreed that no employee had ever dictated when and how many hours he/she would work. Rosters were arranged by the Club based initially on what hours the Club required.

59 Mr Fitzgerald said that the Club had the right to change the status of an employee with due notice and consultation. The draft order proposed by the Union referring to an existing contract of employment with Ms Connal was incorrect as there was no contract of employment.

60 In cross-examination, Mr Fitzgerald agreed that the Award provides for two categories of employees - employees employed before and after the making of the Award in July 1999. Ms Connal was employed as a casual employee before the making of the Award.

61 Mr Fitzgerald agreed that if Ms Connal was made part time her rate would be reduced by about 33.5 per cent. A reduction in earnings would result if her current hours remained the same. In re-examination Mr Fitzgerald said that Ms Connal's part-time rate was to be increased by 15 per cent, even though the Club had no legal obligation to do so.

62 Mr Fitzgerald said it was for operational reasons that Ms Connal was required to change to full time or part time employment. Casual employees were employed to meet the operational needs of the Club and were not employed on regular shifts. He said efficiencies increase when all employees work the same roster. Ms Connal is presently the only casual in the clearance team.

63 Mr Fitzgerald said the Club did not wish to be seen as favouring one employee over others. He agreed no staff had directly expressed dissatisfaction to him or written a complaint about any preference shown to Ms Connal. However, he had received reports from managers that the staff was not happy with the existing arrangements.

64 Mr Fitzgerald agreed that there had been earlier changes proposed to Ms Connal's hours, but nothing had eventuated. He acknowledged that an employee would be reluctant to move to a classification which resulted in a significant reduction in earnings. He accepted Ms Connal was a unique, faithful and reliable employee. He said this was why the Club wanted to keep her.

65 Mr Jones, for the Club, traced the history of the proceedings since the Union first notified the dispute on 14 February 2002. He put that the Club had attempted to resolve the matter but had failed due to the intransigent attitude of the Union and Ms Connal. The Club had put written offers and provided a sample roster. The dispute could have been resolved if Ms Connal swapped shifts with employees who didn't want to work on weekends.

66 The Club conducted a survey of the clearance team, which showed that only one employee didn't want to work on weekends. The Club had demonstrated that there was no contract of employment with Ms Connal.

67 Despite all the Club's efforts, Mr Jones submitted that the Union and Ms Connal sought orders that guaranteed fixed hours of work on particular days for a casual employee. Mr Jones referred to the advantages and disadvantages of casual employment by reference to the Award. He said that even though the rosters were posted two weeks in advance, either party could cancel the work at short notice to meet the Club's operational requirements or the employee's wishes. See Markonski v Catolina Country Club [2000] NSWIRComm 1034 (30 March 2000), Connor C.

68 Mr Jones argued that the Union's proposed order was an invitation to the Commission to directly intervene in the conduct of the Club's affairs and a direct usurping of management prerogative.

69 Mr Jones submitted that the Union was asking the Commission to intervene in the conduct of it's business and impose a requirement on the employer to maintain a condition that had never existed.

70 Mr Jones pointed to the two affidavits of Ms Connal, which did not refute Mr Fitzgerald's affidavit that no contract of employment had ever existed in the form proposed by the Union. The onus rested with the Union to prove that it had.

71 Mr Jones referred to a number of authorities dealing with management prerogative, Re Cram & Ors; Ex parte NSW Colliery Proprietors Association & Ors 21 IR 165, Markonski v Catolina Country Club [2000] NSWIRComm 1034 (30 March 2000), Connor C, Morts Dock and Engineering Co Ltd v the Federated Ship Painters and Dockers Union of Australia (1954) 79 CAR 254, Pickering & Skilled Communications Services Pty Ltd and other matters [2002] NSWIRComm 1033 (29 March 2000), Murphy C, Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273, Shop, Distributive and Allied Employees' Association, New South Wales & SmithKline Beecham (Australia) Pty Ltd [2000] NSWIRComm 1089 (26 July 2000), McLeay C, Richard Sharma and IBM Australia Limited [1989] NSWIRComm 515 (18 September 1989), McLeay C, Ambulance Service of New South Wales and Health and Research Employees Association [1992] NSWIRComm 1 (21 February 1992), Cullen J, New South Wales Teachers Federation v Secretary, Ministry for Education and Youth Affairs (No1) 35 IR 243.

72 Mr Jones said that the requirement in the Award to notify employees and consult them about changes in the workplace applied to permanent employees - not casuals. Reliance on cases concerning redundancy do not assist the union's case, as casuals are expressly excluded. In any event, he said the Club had consulted extensively with Ms Connal.

73 Mr Jones submitted that the Union's own authorites supported the Club's submissions. If Ms Connal chooses to remain a casual employee she must accept the risks of casual employment. Permanent full time or part time positions are, and remain available to her.

74 In the gaming area, Mr Jones said that in the six months between July and December 2001, casual hours were reduced from 1359 to 976, whereas full time hours increased from 7061 to 7647 and part time hours increased from 1982 to 2777. The Union had itself endorsed this shift to permanent employment.

75 The move to more permanent employment had been discussed with Ms Connal over many months and numerous offers have been made to her; all of which had been rejected. She maintained her intransigent attitude of consciously choosing to remain a casual employee, but insisting on working weekends and denying other employees weekend work.

76 Mr Jones said that the draft orders cannot and should not be granted. Further, the Commission had no power to do so. Mr Jones submitted that the Commission cannot make any order in the arbitration of an industrial dispute under s136 of the Act, unless the dispute involves industrial action, dismissal or threatened dismissal or a secondary boycott - matters limited by s137.

77 The Act, he suggested, may be defective or the legislature did not intend the Commission to have the power to make orders of the kind sought by the Union. If this dispute discloses a flaw in the Act, then the Act needs to be corrected.

78 Mr Jones addressed the Club's notice of motion of 29 April 2002. He said the dispute was "politically motivated" so as to enhance the incumbent team during the Union election. The dispute is therefore "frivolous and/or vexatious" and was instituted without reasonable grounds. The fact that the Union knew there was no basis for the orders sought and no contract of employment existed, demonstrated that the dispute was "politically motivated."

79 In reply, Mr Acev strongly resisted this last submission and said the dispute had genuine merit and had been pursued with sincerity.

80 At the outset I find it rather curious that the Union would be critical of the Club's approach to move from casual to permanent employment. My understanding is that the Union movement has, for some time been agitating for a reversal of the increased trend towards casualisation of the workforce. Nevertheless, I need not take this observation any further.

81 To my mind, this is not a dispute which requires the Commission to make findings on the management's right to manage it's business as it sees fit - or on the other hand, an employee's right to be treated fairly and reasonably.

82 It seems to me that this is plainly a dispute about whether a casual employee can continue to enjoy the benefits of both casual and permanent employment.

83 Given this starting point, the Commission finds it unnecessary to consider the authorities referred to by both parties concerning "management prerogative." There was, however one authority that I found particularly apposite to my conclusions in this matter. In Markowski v Catolina Country Club, Connor C referred to the nature of casual employment; albeit in the context of an unfair dismissal case. Connor C cited the following passage from Morts Dock and Engineering Co Ltd v the Federated Ship Painters and Dockers Union of Australia, In this dispute, I am of the opinion that the management has adopted a reasonable attitude concerning the allocation of overtime and is one that could well be continued. The manner in which such overtime shall be allocated, however, is a matter for the management to determine and the union cannot claim a right to say who shall be selected, or when, or where and how he shall be employed… The Commissioner then said, I regard the allocation of shifts to casual employees in the same light. An employer always retains the right to select the appropriate employees to perform available work. and later, There can be no guarantee of permanent employment or a consistent number of hours each week for a casual employee, a factor for which there is compensation in the payment of a casual loading (my emphasis). Ryde-Eastwood Leagues Club v Taylor is concerned with the severing of the contract of employment in a practical sense - the actual removal of a casual employee from an established casual roster even though that had never been spelt out in clear terms. Nothing like that has happened to Ms Markowski. Moreover, there is no evidence before me to support the contention that Ms Markowki was in any way deprived of work which was available in the club, consistent with has casual position at the club. It is the availability of the work which sets the pace in that respect and not Ms Markowski's requests. Put simply, the club is not obliged to give her work if none is available.

84 In my view, Connor C correctly states the industrial realities of casual employment. I respectfully concur with his comments.

85 There can be no doubt that Ms Connal was employed as a casual employee. There is no evidence of any written contract of employment which held out the guarantee of regular and continued employment.

86 Further, I do not accept Ms Connal's evidence that there was a verbal contract of employment, which guaranteed regular hours of work on specific days of the week. Moreover, Ms Connal's own evidence would seem to corroborate that of the Club's witnesses. On a number of occasions, Ms Connal's working hours were altered. For example, when the "Kick's" nightclub opened and then closed two years later; when she moved to the Central Coast in 1993 and when the Club commenced twenty-four hour trading.

87 Mr Acev argued that because the Club had offered Ms Connal Thursday to Sunday work, then she was only seeking to maintain what the Club itself had insisted upon. This is a flawed argument. It begs the question entirely. Because there was an agreement at one point in time doesn't mean it can't be changed in the future for genuine operational needs or at the request of the employee. Indeed, this is precisely what happened to Ms Connal on a number of earlier occasions as cited above.

88 Understandably, Ms Connal objects to the loss of the casual loading and permanent weekend penalties. I accept there will be a consequent loss of income. Ms Connal deposed that her loss of earnings would result in her being forced to work a second job or lose her home because of mortgage commitments.

89 Unfortunately, let me say as to her loss of income, any objective observer would have to query the wisdom of embarking on a large mortgage commitment knowing the vagaries associated with casual employment. It was a choice Ms Connal freely made.

90 While I have some sympathy with Ms Connal's predicament, I am afraid this is not the point. Let me state again - a casual employee cannot insist what hours and what days he/she will work.

91 On the other hand, I am not certain that the loss of earnings will be as significant as Ms Connal imagines. Her assessment of a loss of $229 per week is based on the weekly award rate. As the rolling roster will include weekend penalties this cannot be the degree of actual loss. Moreover, the assessment does not include the 15 per cent loading the Club has agreed to apply to her rate of pay.

92 Some further short observations are necessary in concluding this matter.

93 Firstly, the evidence is that Ms Connal could have retained a 15 per cent loading if she had taken up part time employment within six months of the making of the Award in 1999 (cl 10.2.12). She freely chose not to do so.

94 Secondly, the grant of the order sought by the Union would have the effect of ensuring Ms Connal would receive higher earnings than other employees in the clearance team. The other employees have been rostered around her. They do not have an opportunity for permanent weekend penalty rates. I note that a survey of the clearance team undertaken in March 2002 by the Club, revealed that six of the seven employees wished to work on a rolling roster.

95 It seems to me, therefore, that granting the order sought by the Union would be inconsistent with my statutory duty "to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms." (s163(c))

96 In other words, the grant of the order would produce an inequitable result. While there was no direct evidence of any discontent among other employees (although Ms Matthews spoke of "rumblings") it wouldn't be too long before other employees might well think that Ms Connal is a favoured and privileged employee.

97 It follows from the foregoing that the following observations can be made. For many years Ms Connal has received the benefits of casual employment such as casual loadings, fixed weekend work and flexibility, but is now not prepared to accept the "down sides" of casual employment - irregular hours and not being required to work if the employer so determines.

98 It seems clear to me that Ms Connal wants the best of both worlds. It is an unreasonable and unrealistic expectation. The Commission cannot, in good conscience, condone its continuance.

99 The Commission's power to make orders arising from the arbitration of an industrial dispute is found in s136 of the Act: 136(1) [Action] The Commission may, in arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis).

100 The draft order proposed by the Union is both misconceived and contradictory. It seeks to maintain a casual contract of employment by insisting on fixed hours on specific days. In my opinion, this is illogical and oxymoronic. A casual engagement cannot conceptually, or by definition, be for fixed hours or days. Indeed, on one view, it might be argued that each single casual engagement is, of itself, a contract of employment.

101 As I have determined to reject the Union's case on its merits, the question of whether the Commission has jurisdiction to make the orders does not in stricto sensu arise. However, Mr Jones argued that the Commission had no jurisdiction to make the orders sought on a somewhat different basis. The Commission cannot let this bizarre and breathtaking submission pass unattended.

102 Shortly stated, Mr Jones argued that the Commission had no power to make orders on the subject matter in the Union's draft order, particularly as the dispute had not involved any industrial action.

103 Mr Jones' submission is predicated on the proposition that s136 dispute orders can only be made if the proposed order fits within the definitions contained in s137: 137(1) [Dispute orders] The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings: (a) The Commission may order a person to cease or refrain from taking industrial action. (b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute. (c) The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so. (d) The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute.

104 In my view, Mr Jones' argument simply cannot be right. Section 136 is a discrete section which authorises that Commission to do any number of things in arbitrating a dispute, such as making recommendations, giving directions, making or varying an award, making a dispute order under Pt 2 and making any other order the Commission is authorised to make.

105 On a proper construction of the section, these powers must be seen as operating independently of, and distinctly to the kinds of dispute orders envisaged by the limiting provisions of s137.

106 This interpretation is strengthened by the discrete reference to Pt 2 dispute orders in s136(1)(c). In other words, sub para (c) is directly referable to s137 and the limitations contained therein, while sub para (d) envisages different kinds of orders to those arising from industrial action.

107 Logically, it simply cannot be said that the only orders the Commission can make under s136 are those limited by s137. As I said during the proceedings, such a proposition would mean that hundreds of orders made by the Commission over the years were beyond power.

108 It is also pertinent to refer to the definition of "industrial matters" in s6(1) of the Act: 6(1) General definition. In this Act, industrial matters means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry.

109 Moreover, the definition of "industrial dispute" in the Act's Dictionary makes it perfectly clear that industrial action need not be the trigger to orders that can be made under s136. The definition makes no reference to industrial action. One can, I think, comfortably accept that a broad definition of an industrial dispute is plainly contemplated by the Dictionary definition.

110 Given these observations it would be an absurd result that would bar the Commission from making orders on a wide range of industrial matters which may be the subject of an industrial dispute.

111 It will be immediately apparent that acceptance of Mr Jones's submission would have the consequence of actually encouraging industrial disputation. Surely this cannot have been the intention of the legislature and is directly contrary to the spirit and intent of the Act.

112 Mr Jones' submission has no substance. It is rejected.

113 The Club filed a notice of motion on 29 April, 2002 which, inter alia, sought to have the proceedings dismissed pursuant to s162(2)h of the Act. The section is expressed as follows: 162(2) The Commission: (h) may dismiss at any stage any proceedings before it if it considers the proceedings are frivolous or vexatious,

114 Mr Jones submitted that this dispute was pursued from conciliation to arbitration for political reasons related to the Union's election campaign. It followed, Mr Jones said, that the proceedings were frivolous and/or vexatious and not instituted for reasonable cause.

115 I would reject this submission for the following reasons.

116 Firstly, the Club brought no evidence to substantiate this submission.

117 Secondly, Ms Connal was being asked to accept terms of employment, which she believed would see her income significantly reduced. Moreover, Mr Fitzgerald acknowledged that an employee would by "unhappy" about moving to a classification which resulted in a significant reduction of earnings (Tp 77). Clearly, Ms Connal had a claim that warranted testing and determination by the Commission.

118 The Union, in my view, was doing no more than representing a member's interests in the pursuit of a legitimate, if ultimately unsuccessful objective. The Union sought to exercise its rights under the Act on behalf of the understandable grievance of its member. There is nothing remarkable about that.

119 Viewed in this way, I cannot accept that the dispute was instituted without reasonable cause or that Ms Connal's claim was frivolous and/or vexatious.

121 In light of my conclusions in this matter, the Commission declines to make the orders sought by the Union in Exhibit 1.

122 The Commission dismisses the Club's notice of motion dated 29 April 2002.

123 Pursuant to s136 1 (a) of the Industrial Relations Act 1996, the Commission recommends that: 1. The Parramatta Leagues Club Ltd offer full or part time permanent employment to Ms Carol Connal within seven (7) days. 2. Within fourteen (14) days, Ms Connal is to elect whether to take up the offer of full or part time permanent employment or retain her current status as a casual employee.

124 It follows that if Ms Connal elects to remain as a casual employee she cannot expect to insist on what hours are worked and when.

125 These proceedings are concluded and the dispute is determined accordingly.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

[2000] NSWIRComm 1034

[2002] NSWIRComm 1033

[2000] NSWIRComm 1089

[1989] NSWIRComm 515

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