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

Byrne v Star City Pty Ltd, Cargill C, 1097/98, Print Q5602 - [2000] NSWIRComm 200 - NSWIRComm 1999 case summary — Zoe

[17]

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.

[29]

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:

[42]

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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Judgment (43 paragraphs)

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