Bootmakers and Heel Bar Operatives &c (State) Award [2001] NSWIRComm 114 - NSWIRComm 1998 case summary — Zoe

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Bootmakers and Heel Bar Operatives &c (State) Award [2001] NSWIRComm 114

[2001] NSWIRComm 114

Industrial Relations Commission (NSW)|1998-11-06|Before: Kavanagh J, Schmidt J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1998-11-06

Before

Kavanagh J, Schmidt J

Source

Original judgment source is linked above.

Judgment (30 paragraphs)

[1]

CITATION : Bootmakers and Heel Bar Operatives &c (State) Award [2001] NSWIRComm 114 APPLICANTS: Shop, Distributive and Allied Employees' Association NSW Shop Assistants and Warehouse Employees' Federation of Australia, Newcastle & Northern, NSW PARTIES : Labor Council of NSW RESPONDENTS: Employers First Australian Retailers Association FILE NUMBER: IRC1283 of 1999 CORAM: Kavanagh J CATCHWORDS : s19 - application for change to part-time clauses under s19 Notice of Review of Award - Reliance placed on the evidence of one employer in bootmaker industry - evidence called from Mr Minit - Issue as to ambit of s19 review - Whether application can be considered under a s19 review - Application by Employers First dismissed as outside the ambit of a s19 Notice of Review - Employers First rely upon s19(3)c) which states part-time employment provision a consideration in s19 reviews - Proposed alteration cannot be made without consideration as to effect on all employers and employees and as to the public interest - Amendment proposed significant - Evidence not sufficient to persuade Commission there should be such an alteration to the clauses in the award - Employer has needs but no indication of use of present part-time provision within employers' rosters LEGISLATION CITED : Industrial Relations Act 1996 Workplace Relations Act 1996 Principles for Review of Awards State Decision 1998 (1998) 85 IR 38 Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award [2000] NSWIRComm275 State Part-Time Work Case (1998) 78 IR 172 Crown Employees (Public Service Conditions of Employment) Award 1997 [2001]NSWIRComm22 CASES CITED : Rock and Ore Milling and Refining (State) Award, Rock and Ore Milling and Refining Redundancy (State) Award, Rock and Ore Milling Superannuation (State) Award [2001] NSWIRComm54 Warehouse Employees - Drug (State) Award [2001] NSWIRComm37 Storeworkers - Davids Distribution Pty Limited NSW Distribution Centres Award 1998 (unreported, Schmidt J, IRC98/1117, 6 November 1998)

[12]

11 Mr Barlow in his evidence revealed 34 Mr Minit stores trade Monday to Sunday and the balance trade Monday to Saturday each week, except for two stores which trade 5 days a week. A majority of the company's stores also trade on Thursday nights. The evidence revealed therefore 60-70% of their shops trade on a Sunday. 12 A significant amount of oral and documentary evidence especially evidence relating to the rostering of staff and the hours of work relating to the operation of Mr Minit, was received. It revealed many of Mr Minit's stores are one person operations. As the employer generally opens its stores in shopping centres and malls, their hours of operation are bound by the trading policy of the particular operator. Therefore, the employees of Mr Minit are required to work in accordance with the Mr Minit roster, that is, 11 days each fortnight and a casual employee works the 12th day. The casual employees receive at least one regular shift each week. The employer submits the current award does not allow those regular employees to be classed as part-time workers as the shift on which they are rostered does not provide a 12 hour minimum as required under the present part-time clause in the award. The work roster of Mr Minit also allows, when there is annual leave or long term leave absences from its country stores, for a relief employee to be sent from Sydney or Newcastle. 13 An examination of the rosters in the Sydney stores reveals the employees work two shifts - one eight hours a day and one 11 hours a day allowing for night time trading but over seven days. In the Monday to Saturday stores, full time employees are rostered to work an average of 49.5 hours in the first week and 41.5 hours in the second week. However, in a break down of how the roster works "on the job", employees are actually working up to 56 hours per week and they are rostered to work these hours. One of the permanent fortnightly rosters allows for 49.5 hours work the first week, then 55.5 hours work the second week (see Macquarie Trading shop). An average employee works 7 hours overtime a week. 14 The volume of trading indicates the company needs its best operators to work on a Thursday, Friday and Saturday and in some shops an additional employee is rostered to work on those days. If Sunday trading is involved an average employee works not 11 days each fortnight but 12 days. It is difficult in the one man operation to allow for any time off. Absences such as for illness or for personal reasons cause a problem. 15 The company conceded there is a high rate of trained staff turnover and, from what was not a particularly scientific but nonetheless very persuasive exit interview, it was revealed the long working hours required by the rosters was a major factor in many of the voluntary terminations of employment. 16 The difficulty the Commission has with this evidence is, while a more flexible working arrangement may be advantageous to the employer, the evidence revealed the employer is at present not utilising the existing part-time provision in the award. Of the company's 82 employees, 78 are full time employees, 3 are casual employees and 1 is a part-time employee. This comment is not made as a criticism of an employer who repeatedly committed itself to retaining its full time employees. 17 The employer submits the proposed 7.6 hour minimum provision for part-time work would allow the company, in regional areas where there is little Sunday trading, to work a part-time worker one day per week and a full time employee only five days a week not up to seven days. The company submits its staff's long working hours in the city stores and in the regional shopping centres also could be alleviated with the use of the proposed amended part-time provision to the award.

[14]

(b) The construction of s19(6) of the 1996 Act. . . . The statutory injunction in s19(6) is mandatory, requiring that "the Commission is to make such changes to awards as it considers necessary as a result of a review". In our view, such changes must be made as part of the review process. The legislature did not intend that the fate of the changes found to be necessary be left to the Commission's discretion being complied with by the award parties. We observe that the s19 review process as part of industrial regulation by awards involves both new and different processes and obligations. They are philosophically different to the familiar processes available to award parties in the 1996 Act ... It requires the Commission to make changes to the award which properly flow from the review process. That obligation could not be achieved by the giving of a possibly unenforceable direction to award parties that they make an application consistent with the view the Commission had formed in the review . . . . . . the Commission of necessity would have regard to other principles applicable to the making or variation of an award, such as the wage fixing principles and would not act inconsistently with them. The parties would also be given an opportunity to be heard. Nevertheless, if the Commission formed the view in the review proceedings that a particular change to the award was required then, in order to satisfy the purpose of the review as specified in s19(2), it would be obliged to make the change as part of the review process in accordance with the mandatory provisions of s19(6). To adopt any other approach would potentially make the review process a pointless exercise. The fate of awards judged as requiring modernisation, presumably as a result, in part at least, of a lack of attention by the award parties, would again be left to the same parties. Potentially, that would result in the award review process being a time-consuming, expensive and ultimately futile exercise.

[17]

23 The question arises as to how s19 of the Act, having a function and purpose of review, interrelates with s10, s11 and 17 and other associated provisions of the Act. In the Award Review Decision (at 44) the Full Bench gave a cautionary warning: Applications brought by award parties in order to meet the needs of employers and employees in the circumstances of a particular industry or enterprise are pursued and determined in accordance with the provisions of the 1996 Act ... together with other applicable legislation and applicable principles, including those established in State Wage Case decisions, State decisions and test case decisions. By way of contrast, the process established by s19 has a stated and limited purpose - namely 'to modernise awards, to consolidate awards relating to the same industry and to rescind obsolete awards.' And: Care must be taken it seems to us to ensure that these two processes are not confused. 24 As to the meaning of the word "modernise" the Full Bench in the Award Review Decision stated (at 43): . . . we were variously addressed on the meaning of the word 'modernise' as used in s19(2) where the purpose of the review process is specified to be "to modernise awards, to consolidate awards relating to the same industry and to rescind obsolete awards". "Modernise" is not a defined term but is a word which is used with its ordinary meaning, to be understood in its statutory context as comprehending both bringing the award up to date and making it contemporary. . . . comprehended in the s19 review process in "modernising" awards is an obligation to ensure that the awards are made consistent with the current statutory framework. 25 The union challenges this application brought by Employers First under a s19 review process. In its challenge it relies on the Full Bench's words of warning in the Award Review Decision (at 56): There is no special role provided by s19 for the Commission itself to call evidence in review proceedings or to embark upon a wide ranging investigation into the operation of a particular award or industry.

[24]

35 In support of the general proposition that it is proper to vary the terms of this award and to make part-time work in the boot trade more flexible by reducing the number of hours a worker can work as a part-time employee on a regular basis, Employers First relies on the principles enunciated in the State Part-Time Work Case where the Full Bench declined to set a 12 hour minimum standard clause for State awards stating (at 205): . . . a weekly minimum of twelve hours, . . . in our view would have untoward and undesirable results . . . We add that the approach again carries with it a real risk of direct and indirectly discriminatory consequences, in that it could particularly deprive women, young workers and those with disabilities from access to part time work agreements which their personal circumstances require and which would not make such agreed arrangements exploitive in any sense. 36 Employers First submits the present clause abrogates the fundamental right of an employer to manage his own business. In relation to the number and/or category of persons in employment the employer's organisation submits this employer, under the current provision of a 12 hour weekly minimum and 30 hour weekly maximum, is prevented from engaging employees on a part-time basis suitable to his employment needs. 37 However, no evidence was led to persuade the Commission that the present part-time clause would not serve to provide the flexibility needed by this employer. They only employ at this stage three casual employees and one part-time employee. Generally their workforce is a full time workforce. This is not a criticism of this employer. They are free to take management decisions as to their rosters. 38 Ms Barratt relies on the statement of Mr Barlow, from Mr Minit: A more flexible part time arrangement would allow us to fully train the number of part time employees who could be used to ease the inconvenience that is sometimes caused to employees by the roster allowing us to cover absences more efficiently and giving us the flexibility to roster employees to meet consumer demand.

[25]

When asked in cross-examination why he was not using the existing part-time provision to overcome staffing problems on Thursday night, Mr Barlow said: We could but this come (sic) down to the whole reason we are doing this. With part timers we would have to guarantee 12 hours a week. Because all the shops have their extended hours on the same day of the week we could give each one three or four hours to cover the evenings but there are no other evenings during the week where they could do the additional hours to do the 12 hours a week. 39 Employers First further relies on the decision of Schmidt J in Storeworkers - Davids Distribution Pty Limited NSW Distribution Centres Award 1998 (unreported, IRC98/1117, 6 November 1998 at 22) where her Honour accepted the existing part-time clause posed an inappropriate impediment to both the efficient operation of warehouses and the employment of a greater number of store workers, and she determined to exercise her discretion to ensure that the artificial limit on employment opportunities was removed. 40 The Commission has found the Award Review Case, the does not simply authorise the re-writing of an award so as to increase the flexibility of a part-time employment clause in an award to suit a particular employer. While in its consideration, the Commission has regard to whether the present clause provides an "unjustified" impediment and an "artificial" impediment to part-time employment the Commission finds Employers First, on the facts, has not proven the present part-time clause provides the boot trade industry, or even for Mr Minit, an unjustified or even artificial impediment to part-time work. 41 What the evidence revealed was the company, Mr Minit, has not fully utilised the category of worker as defined in the award through the part-time clauses. The Commission heard no satisfactory evidence the existing provision would not provide a more flexible working environment for both the employer and the employees. This employer has made little to no attempt to design rosters which could incorporate the employment of part-time workers. In effect the only evidence offered was: We would prefer not to offer a guaranteed four hours per day nor 12 hours per week but prefer to offer not less than 7.6 hours per week up to 38 per week. 42 Questions such as are there alternatives to the proposed amendment? Does the change unfairly or deleteriously affect employees? Should there be other amendments to balance any disadvantage to employees caused by such a change should all be addressed in the Commission's consideration. 43 The real proposition before the Commission, as the unions' submit and the Commission accepts, is the award requires change because a large employer in the boot industry, Mr Minit, wishes to take advantage of the changes proposed in relation to part-time work. Such a proposition amounts to no more than a submission that a particular employer would like to be freed from the strictures of an award. This is not an argument relevant to modernisation. It may well be a suitable argument for consideration in an application for a variation of the award or for a new award where the Commission has the opportunity of balancing the competing claims of the parties in discharging its primarily obligation to do justice between an employer and an employee and taking into account the public interest.