Byrne v Star City Pty Ltd, Cargill C, 1097/98, Print Q5602

APPLICANT Mr D Zizza, unrepresented RESPONDENT LEGAL REPRESENTATIVES: Ms S Bower, Solicitor Cutler Hughes & Harris with Mr M Green of Star City Pty Ltd

JUDGMENT:

• 12 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application by Dominic Savio Zizza re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 This decision arises from a challenge by Star City Pty Ltd ("the respondent") to the jurisdiction of the Commission to continue to hear, and determine, a claim for alleged unfair dismissal pursuant to s84 of the Industrial Relations Act 1996 ("the Act"), filed by Mr Dominic Zizza. 2 The application was first listed for conciliation on 29 June 2000, at which time Ms S Bower (Solicitor for the respondent) outlined the respondent's view that the applicant was employed under the terms of a Federal award; namely the Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998. 3 Mr Zizza, representing himself, challenged the respondent's claim. 4 Despite her submissions, Ms Bower indicated a willingness to discuss the matter with the applicant. Accordingly, I directed the parties to confer forthwith. Upon resumption no agreement had been reached. The matter was adjourned in order for the applicant to take advice, and for the respondent to provide to him such information which, it was said, would prove his application had been filed in the wrong jurisdiction. 5 At a report back on 13 July, the applicant claimed that he had advice from the Federal Department of Workplace Relations that his position was not covered by a Federal award or agreement and that he was award free. 6 Following private conferences with the parties, the applicant maintained his view that his application should proceed under the Industrial Relations Act 1996. 7 Not surprisingly, Ms Bower foreshadowed an application for costs and stated that, had the applicant commenced his action in the Federal jurisdiction, her client would not have raised any objection to that tribunal's jurisdiction to deal with the application. 8 In view of the circumstances, I set the matter for interlocutory hearing and issued directions for the filing and service of contentions and evidentiary material.

1. In June 1995, the respondent, Star City Casino, was roped in to the Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award, 1995. There was no specific classification for Gaming Supervisors in the 1995 Award.

2. The applicant, Mr Dominic Zizza, was first employed by Star City in August 1995 as a Gaming Supervisor.

3. The applicant was first employed under the terms and conditions of the 1995 Sydney Harbour Casino Pty Ltd Enterprise Agreement , an agreement registered in the Australian Industrial Relations Commission.

4. In March 1998, gaming supervisors were advised that they would not be covered by the 1998 Enterprise Agreement. The applicant received such a letter. The letter included the following provision: Your revised salary is within the range of the Management and Specialist salary structure at a rate of $47,000 per annum, payable fortnightly into your nominated bank account. This salary encompasses payments which would be payable under the terms of any award. Such payments may include, but are not limited to, overtime and shift allowance.

5. Gaming Supervisors were excluded from the renegotiated 1998 Enterprise Agreement registered in the Australian Industrial Relations Commission on 30 March 1998 and would henceforth be covered by the terms of the letter of employment.

6. The union representing the gaming supervisors, the Australian Liquor, Hospitality and Miscellaneous Workers Union ("the Union"), was concerned that its members were not adequately protected and maintained the 1995 Award continued to apply.

7. On 2 April 1998 the applicant acknowledged and signed the letter of offer dated 31 March.

8. On 31 August 1998, Cargill C in the Australian Industrial Relations Commission heard an unfair dismissal application, filed by the Union, in respect to a gaming supervisor. The Commissioner accepted she had jurisdiction to hear and determine the claim (see Byrne v Star City Pty Ltd , 1097/98 Print Q5602).

9. During 1998, the award simplification process under the Workplace Relations Act (1996) Cth , resulted in a new Award being made ("the 1998 Award"). There is no specific classification for gaming supervisors in the 1998 Award.

THE RESPONDENT'S CASE 10 Ms Bower submitted that the Federal Award and Enterprise Agreement history point overwhelmingly to a conclusion that the applicant has, and continues to be, covered by industrial instruments registered under the Workplace Relations Act (1996) Cth. 11 The respondent called evidence from Mr Mike Green, Star City's Corporate Counsel, who has been employed by the Casino since March 1996. He has been involved in all the Award and Agreement negotiations with the Union since that time. 12 He gave specific evidence as to the negotiations for the 1998 Enterprise Agreement and said the objective of excluding games supervisors was to foster a "management" attitude amongst them. The Union was concerned as to their award protection and maintained that the 1995 Award would continue to cover the gaming supervisors. 13 Mr Green said the letter sent to gaming supervisors in March 1998 was negotiated, finalised and approved by the Union. 14 Mr Green appeared for Star City in the Byrne case. The Union had submitted that the gaming supervisors were covered by the 1998 Federal Award. The employer did not oppose this submission and Cargill C accepted she had jurisdiction to deal with the matter. 15 In oral evidence, Mr Green was asked about the concerns of the Union during the 1998 negotiations and whether any matters remained outstanding. He said all matters had been settled at the time of the Agreement's certification. 16 Mr Green said two clauses in the 1998 Enterprise Agreement satisfied the Union's concerns. These were: 3.1 Where the parties are unable to agree on whether this agreement covers certain work, either party may refer the matter to the Australian Industrial Relations Commission. The parties agree to accept any recommendation of the Australian Industrial Relations Commission and 3.3 An employee shall not be disadvantaged overall when comparing the terms and conditions of the Hospitality Award 1995 when compared to the terms and conditions set out in the agreement.

17 Mr Zizza asked Mr Green why the letter of March 1998 did not make specific reference to the relevant award. Mr Green said it was unnecessary to do so, but in any event, there was a view that some time in the future a new casino specific award might be negotiated. 18 Ms Bower submitted that much of the material filed by the applicant was uncontested. She said it tended to corroborate the respondent's case. 19 Ms Bower contended that an award will fall into one of two categories when one seeks to interpret its coverage:

1. There may be specific classifications under which employees are employed; or 2) industry awards which refer to the work of the employer and which do not describe particulars of a classification.

Star City, she said, fell into the latter category as it's award referred to " persons employed in any capacity ". 20 It follows, she argued, that awards are not limited to persons employed in specific classifications - see Adventure World (WA) Pty Ltd v Hennessy, Giudice P, Polites DP and Gregor C, Print R0479, January 1999 and Spalding v Can't Tear Em Pty Ltd [1999] Wilcox, Marshall and Dowsett JJ, FCA 1222, 3 September 1999. 21 It was sufficient, Ms Bower submitted, for a particular employee to be covered by a federal award, if any of the employees' terms and conditions of employment are covered by a federal award. See Dazmeny Pty Ltd t/as Sails Resort v Thorn [1997] Ross VP, Harrison SDP and Cargill C, AIRC 890/97 Print P3536, 27 March 1997.

22 Mr Zizza, on his own behalf, submitted as follows:

1. The Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998 makes it clear that it only covers employees in classifications within the Award. The Award excludes gaming supervisors and does not apply to supervisory or managerial work (cl 3 of the Award).

2. This distinction is to be contrasted with supervisor classifications in other streams such as food and beverage, kitchen, guest services, front office and clerical.

3. The respondent's dealings with the Union highlight a number of concerns the Union had identified as needing attention.

4. The Union did not provide evidence to support Mr Green's assertions concerning its view of the 1995 Award, or endorsing the respondent's decision to delete gaming supervisors from the Enterprise Agreement.

5. Byrne v Star City was not definitive. It merely reflected an agreement between both parties.

6. The letter of offer was a contract of employment setting out the rights and obligations of the employer and the employee.

7. Gaming Supervisors are not covered by any award or agreement and are therefore " award free ". 23 Mr Zizza relied on two authorities to support his contentions - Kerr v Jaroma Pty Ltd t/as Treasury Motor Lodge, Marshall J, Industrial Relations Court of Australia (960470), 7 October 1996 and Jan and Jack Schickerling v Gosford RSL Club [1998] Miller CIM, 109, 12 November 1998.

24 To my mind, a determination of this matter involves a relatively uncomplicated assessment of the documentary material referred to by both parties, including relevant decisions. 25 The issue is straightforward - is the applicant, as a matter of jurisdiction, entitled to press his claim of alleged unfair dismissal under the Industrial Relations Act 1996? 26 On one view of it, the question has already been decisively answered by a finding made by Cargill C of the Australian Industrial Relations Commission in Byrne v Star City Pty Ltd. 27 The Commissioner was there faced with identical agreed facts as are before me. She said at p2: The respondent operates the Star City Casino in Sydney and the applicant was employed by it as a Games Supervisor. Her employment with the respondent commenced on 21 August 1995 at which time the respondent was known as Sydney Harbour Casino Pty Ltd. From the commencement of the applicant's employment until the end of March 1998 the terms and conditions of her employment were covered by the provisions of the Sydney Harbour Casino Pty Ltd Enterprise Agreement 1995 (the Agreement). As a result of negotiations with the ALHMWU for a new enterprise agreement, the positions of Games Supervisors were to be transferred from an enterprise agreement covered classification to a management scale classification. Letters confirming this transfer and setting out the new terms and conditions of employment were given to Games Supervisors on or about 31 March 1998. The letter which was given to the applicant is marked Exhibit M3. The applicant accepted the offer to transfer to the new conditions on or about 8 April 1998, however the transfer was effective from 30 March 1998. There was no dispute between the parties that this new contract was underpinned by the Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998, an Award of this Commission, thereby providing the necessary. 28 Mr Zizza was a Games Supervisor employed by Star City Casino. He accepted an offer on 2 April 1998 to transfer from the Enterprise Agreement to new conditions which were underpinned by the Federal Award (annexure B of Ex'2'). 29 In my view, this set of circumstances, in para materia, leave me in no doubt that the issue of jurisdictional coverage for games supervisors has been well and truly resolved. It is a finding with which I respectfully agree with Cargill C. 30 Little more needs to be put that would strengthen this finding. However, in deference to Mr Zizza's well researched case, I point to other factors which leave no reason to doubt the correctness of my above conclusion:

1. had the applicant declined to accept the transfer in 1998, he would have remained on a classification under the Star City Pty Ltd Enterprise Agreement , an industrial instrument of the Australian Industrial Relations Commission, certified by Ross VP on 30 March 1998;

2. the respondent, Star City Pty Ltd, has, from its commencement, been a party to the Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award ; an award of the Australian Industrial Relations Commission;

3. a number of enterprise agreements, which have been underpinned by the said award, have been negotiated between the Union and the respondent since 1995. Such agreements require, for the purposes of the "no disadvantage test" a comparison to be made to the Federal Award;

4. it seems to me that the intention of the respondent to remove the Games Supervisors from the 1998 Enterprise Agreement was not to deny the Games Supervisors award protection. If this was so, one might well imagine the vehemence of the Union's protest. It seems logical to presume that the Union would never have agreed to be a party to the 1998 Agreement on such terms;

5. the relevant Award provision relating to coverage is to be found at 5.2: This award relates to the industry of persons employed in any capacity whether full-time, regular part-time or casual in hotels, resorts, casinos , taverns, wine saloons, wine and spirit merchants retailing to the general public and other retail licensed establishments in or in connection with accommodation, with the selling of drinks, preparing and serving food and drinks, cleaning and attending to the premises and all other services associated therewith.

In my view, the proper construction of this clause makes it beyond doubt that the Award has coverage of any employee employed in a casino.

6. the 31 March 1998 letter of offer to the applicant contains these words: Your revised salary is within the range of the Management and Specialist salary structure at a rate of $47,000 per annum, payable fortnightly into your nominated bank account. This salary encompasses payments which would be payable under the terms of any award. Such payments may include, but are not limited to, overtime and shift allowance. 7) The applicant cites the lack of award specificity in this paragraph as supportive of his case. However, while the reference to " any award " is plainly not specific, there can be no doubt, in view of the history of industrial regulation of employees employed by Star City, that " any award " must mean an award of the Australian Industrial Relations Commission. Clearly, in this context, it is intended that it is referable to the Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award . This underlines the underpinning of the contractual arrangement to an award - and more particularly to an award of the Australian Industrial Relations Commission.

8. While it is obvious that Gaming Supervisors were notably excluded from the 1998 Agreement, there is a capacity for any disadvantage to such employees to be measured against the provisions of the Federal Award. Cl 3.3 makes direct reference to the Federal Award: An employee shall not be disadvantaged overall when comparing the terms and conditions of the Hospitality Industry - Accommodation Hotels, Resorts and Gaming Award 1995 when compared to the terms and conditions as set out in this agreement. To that end and where an employee after a period of 12 months from date of certification can demonstrate that they have been disadvantaged by this agreement when compared to the award the parties will conduct a comparison of the award conditions and the conditions under this agreement. In circumstances where an employee has been shown to be disadvantaged following the comparison the company undertakes to reimburse the employee the shortfall.

9. Viewed in this light, it is difficult to argue that the Gaming Supervisors rates and conditions are not underpinned by the Federal Award.

10. A further Federal connection is found in cl 3.1 of the 1998 Enterprise Agreement where there is direct reference to disputes being referred to the Australian Industrial Relations Commission (see para.16).

11. There is no evidence of any dispute, industrial instrument or application involving Games Supervisors and Star City having ever been before the Industrial Relations Commission of New South Wales.

12. The contract of employment does not comprehensively cover the terms and conditions of employment. If Mr Zizza's claim, that he is award free is correct, it means there are award benefits and conditions which might not be available to him.

CONCLUSION 31 In my view, the authorities relied upon by the applicant do little to support his position. On the contrary, they are entirely consistent with my conclusions in this matter. 32 But even if I be wrong about it, I do not see how the applicant would in any way be prejudiced, or disadvantaged by pursuing such rights as may be available to him for relief from alleged unfair dismissal under the relevant provisions of the Workplace Relations Act (1996) Cth. Such legislation plainly provides for similar remedies for unfair dismissal as are available under Pt 6 ch 2 of the New South Wales Act. 33 The Commission notes the concession made by the respondent that the applicant falls within the definition of a Federal Award employee as provided for in s170CB(1)(c) of the Federal Act (see para.29 of Ex'1'). Taking this concession a small step further, it would seem unlikely, on Ms Bower's submission, that the respondent would oppose the applicant's right to file a claim in the Australian Industrial Relations Commission pursuant to s170CE of the Workplace Relations Act (1996) Cth. I acknowledge, nevertheless, that no concession is made that the respondent might not challenge the claim on other jurisdictional grounds. 34 With these concluding remarks, I am obliged to observe that these proceedings could well have been unnecessary had the applicant accepted that his right to lodge an unfair dismissal claim was readily accessible through the Australian Industrial Relations Commission. Why he ignored the logic of my urgings, is completely beyond my comprehension. 35 His dogged insistence that he was covered by Pt 6 ch 2 of the State Act reinforces my recent comments on the difficulties faced by this Commission, and indeed other Courts, by unrepresented parties in arbitral proceedings (See Nicholls and Central Sydney Area Health Service (unreported) Matter IRC4131 of 1999, 25 August 2000). 36 For the aforementioned reasons the Commission determines that application IRC2757 of 2000 is not competently before the Industrial Relations Commission of New South Wales. 37 The application is dismissed for want of jurisdiction.

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