CPSU, Community & Public Sector Union v State of Victoria

Federal Court of Australia|2000-01-14|Before: Marshall J

1 The background to this proceeding was set out in an interlocutory judgment of the Court which was delivered on 7 June 1999. See Community & Public Sector Union v Crown in Right of the State of Victoria (1999) 90 IR 16. There are two aspects to the proceeding. The first is an application pursuant to s 178 of the Workplace Relations Act 1996 (Cth) ("the Act"). The second is an application pursuant to Part XA of the Act. During the course of the hearing the parties agreed to excise from the award breach aspect of the proceeding all questions other than the issue of whether the employees, the subject of the application, were in fact casual employees. It is only that issue which has to be determined for current purposes other than the aspect of the proceeding dealing with freedom of association.

The casual issue - background facts 2 The security and management of Victoria's ten public prisons is the responsibility of the Prison Services Section of the Department of Justice of the State of Victoria ("the Department"). Those responsibilities are administered by the Public Correctional Enterprise ("CORE"). CORE is a service agency within the Department. The Security and Emergency Services Group ("SESG") is a division within CORE. SESG operates at Barwon, Ararat and Loddon Prisons. It is also responsible for high security escorts, the dog squad and general security matters on demand from all CORE prisons. At Barwon prison SESG is responsible for perimeter security, colloquially referred to as the "gatehouse". Perimeter security includes responsibility for all points of entry to and exit from the prison. It also encompasses perimeter fence security and searches of prisoners and vehicles entering and leaving the prison. 3 SESG assumed full responsibility for the perimeter at Barwon Prison on 4 January 1998. To fulfill SESG's role at the Barwon perimeter, the "gatehouse" prison officers were recruited by SESG in late 1997 to be engaged in early January 1998. The staff at the gatehouse consisted of two officers in charge ("OICs") and approximately twenty-two prison officers. All staff were engaged as casual employees. The positions were advertised on the basis that the successful candidates would be engaged as casuals, with payment made on the basis of the appropriate hourly rate for the prison officer classification plus a twenty-five per cent loading. 4 Mr Paul Delphine is the Director of Prison Services in the Department. The powers of the Secretary of the Department have been delegated to him regarding the employment of staff within CORE. That delegation includes the power for him to form the opinion that staff are required to be employed by the Department and to make appropriate appointments in accordance with the Public Sector Management Act 1992 (Vic) ("the PSM Act"). Mr Delphine decided that the Barwon gatehouse staff would be "hourly paid casual staff". He designated, in accordance with his delegated powers, that the staff to be employed at the Barwon gatehouse would be employed pursuant to Div 5A of Part 2 of the PSM Act. That division is headed "CASUAL EMPLOYEES". Section 35A(1) of the PSM Act provides that: "The appropriate Department Head may, if of the opinion that it is necessary to do so, employ persons on an hourly, seasonal or other casual basis to carry out work in the Department." Mr Delphine formed the requisite opinion and determined to employ prison officers at the Barwon prison gatehouse on a casual basis. 5 The hours worked by prison officers at the Barwon gatehouse fluctuate due to operational requirements and the availability of employees. Employees are rostered for duty on a seven day, twenty-four hour basis. Mr Windisch, an OIC, prepares the roster. The roster covers a fortnightly period commencing on a Sunday and is released on the Wednesday which precedes the start of the roster. Mr Windisch places individual employees' names in positions on the roster. In so doing he takes into account previous rosters, personal preferences of employees and his desire to ensure, as far as is possible, an even distribution of work across the pool of employees. The roster is then distributed. Some changes may be necessitated by employees giving advance notice of their unavailability for particular shifts. Sometimes changes are made on the particular day duty is to be performed. This can occur for a variety of reasons. Employees are not required to give a reason. Occasionally employees "call in sick". Some of those employees who consistently do so are viewed more sceptically when considered in respect of the "reliability" criterion, one of the four factors taken into account by OICs when an employee's performance is appraised on a yearly basis. 6 Employees also have the option of swapping shifts between themselves by private arrangement and then advising an OIC accordingly. Most employees work in excess of seventy-six hours per fortnight but two employees, Mr Watson and Ms Witana, each regularly work one eight hour shift per week. Until an extra twelve employees were engaged in July 1999 some employees were working what may be fairly considered to be excessive hours including, for some, over 100 hours per fortnight. An important feature of the work arrangement is the right of an employee to advise SESG that she or he is unavailable for any particular period of time. As long as adequate notice of such non-availability is given SESG does not hold an adverse view about it. As Mr Windisch said in his evidence, it is not a problem for him if employees do not want to accept their proposed rostered hours of work as long as reasonable notice is given.

The Award 7 The terms and conditions of employment of the Barwon gatehouse employees, including the second and third applicants, are governed by the PSM Act and the Public Service (Non Executive Staff - Victoria) Interim Award 1996 ("the Award"). 8 The Award contemplates in cl 3.3 that persons may be employed under its terms as casuals. "Employee" is defined in cl 3.3 of the Award to include: "employees and officers of the Crown employed pursuant to either Division 4, 4A, 5 or 5A or (sic) Part II (sic) of the Public Sector Management Act 1992 (Vic) and "employed" shall be given a like meaning." Clause 12.7 of the Award prescribes a fifteen per cent loading for persons "employed on a casual basis".

Consideration 9 Whether a person is a casual employee or not is not determined by reference to the Award. The Award simply prescribes many of the terms and conditions of employment of such employees. In this matter it is contended by the applicants that the so-called casual prison officers at the Barwon gatehouse are not truly employed on a casual basis. 10 Neither is the question of whether an employee is a casual employee or not determined solely by reference to the employer's categorisation of the position, although such consideration is a relevant factor in the overall determination. As is accepted by the parties, the term "casual employee" has no fixed meaning. The true nature of any employment relationship will depend on the facts and circumstances of each case. See Doyle v Sydney Steel Company Limited (1936) 56 CLR 545 (at 551, 565). 11 The applicants submit that the relevant relationship is not one of casual employment. They rely on the fact that the relevant employees work hours which are consistent, regular and equivalent to those of a full time employee pursuant to a pre-determined roster. They also assert that the relevant employees are not free to accept or reject work at will. The applicants further submitted that the employment relationship is not informal, uncertain or irregular which is characteristic of casual employment. 12 The Court rejects these contentions. First, it is not inconsistent with a casual employment relationship for employees to be engaged on a regular basis pursuant to a roster. See Ryde-Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385. Second, the evidence is that employees at the Barwon gatehouse can make themselves unavailable for duty and in fact do so without employer disapproval so long as reasonable notice of a roster change is given. In addition, two employees work only two shifts per fortnight. Third, it is not necessarily the case, as Ryde-Eastwood shows, that casual employment will always be informal, uncertain or irregular. 13 It is further put on behalf of the applicants that the word "casual" in s 35A of the PSM Act must be understood in the context of the judgment of Moore J in the Industrial Relations Court of Australia ("IRCA") in Reed v Blue Line Cruises Limited (1996) 73 IR 420. In Reed the meaning of the word "casual" was addressed in the context of the Termination of Employment Convention ("the Convention") which does not refer to "casual employee" but to a person "engaged on a casual basis for a short period", see Reed (at 424). The Court does not consider Reed to be of assistance in the resolution of the current issue. 14 The applicants also rely on the judgment of IRCA in Burcombe v Oldham (t/a The Royal Hotel) (1996) 71 IR 404 where it was observed that the applicant in that matter worked regular hours and was not a casual. Critically it was also noted that (at 406): "(t)here was no evidence that Mr Burcombe was specifically engaged as a casual. Further, there is evidence which suggests that he was engaged as a full time employee…" Another question for IRCA in Burcombe was whether the Convention was applicable. That is not the question for current determination. Here there is no evidence that the relevant employees were engaged in the public service of the State on any basis other than pursuant to Div 5A of Part 2 of the PSM Act pursuant to the exercise of delegated authority of the Secretary of the Department by Mr Delphine. No suggestion was made to Mr Delphine in the course of his evidence that the exercise of delegated authority was a sham. 15 Accordingly the Court is of the view that there is no substance in the submissions of the applicants that the gatehouse staff at Barwon Prison are not, in truth, casual employees. It is currently unnecessary to deal with any further issue on the award breach aspect of the proceeding. The applicants have liberty to apply, in accordance with the rules of Court, to raise any remaining issues relevant to that claim under s 178 of the Act before any final order in the matter is made. The Court will however, out of an abundance of caution, later set a mention date to facilitate the resolution of any issues that remain.

The Part XA issue 16 The second aspect of the proceeding concerns a claim by the applicants that the respondent has breached Part XA of the Act by committing several overt acts of the kind referred to in s 298K for a reason prohibited by s 298L. The acts alleged are as follows: · a threat to demote the second applicant, Mr Murrell · a threat to inflict physical violence on Mr Murrell · insulting, intimidating and humiliating behaviour directed towards Mr Murrell and the third applicant, Mr Hutchins · a reduction in the rostered hours allocated to Mr Murrell and Mr Hutchins · a reduction in access to training opportunities for Mr Murrell 17 It was submitted by the applicants that such conduct was directed at Mr Murrell and Mr Hutchins because they are applicants in this proceeding. In other words it was alleged that the acts referred to in the dot points above occurred for reasons which include the prohibited reasons set out in s 298L(1)(j) of the Act. The Court shall now examine the particular conduct alleged to see if it is satisfied that it occurred and if so whether it occurred for a reason which includes the fact that Mr Murrell and/or Mr Hutchins were participating in this proceeding.

The alleged threat to demote Mr Murrell 18 Mr Murrell was originally employed at the Barwon gatehouse as a prison officer. He is now, together with Mr Windisch, one of two OICs. Mr Murrell was appointed as the second OIC in November 1998. He was selected following a two month period of acting in the position. Two other candidates also completed two month trials in an acting OIC role. After each candidate had concluded his trial period he was separately interviewed by Mr Windisch and the Operations Manager for SESG, Mr Maloney. 19 Mr Maloney alleged, via affidavit, that Mr Murrell was informed during the course of the interview that if successful he would be employed in the OIC position on a casual basis for 6 months and that his performance and conditions would be reviewed after that period. In sworn viva voce evidence before the Court Mr Maloney conceded that Mr Murrell was not told anything about a probationary period for the new appointment. Mr Maloney gave evidence that he told Mr Murrell that his pay rate and performance would be reviewed as part of the normal staff appraisal process which was due to occur in June 1999, about six months after the appointment. Effectively this meant that Mr Murrell's appointment was to continue subject to satisfactory yearly appraisals placing him in the same position as the other OIC, Mr Windisch. 20 On 18 June 1999 Mr Windisch, in his evidence in an interlocutory application in this matter, informed the Court that he didn't "recall anything specifically about a probationary period but - and on the same conditions as myself, the position is open for review on an annual basis to my knowledge". Under cross-examination during the trial Mr Windisch said, in reference to Mr Murrell's interview: "I don't know about this probationary period you keep on going on about." Such evidence is consistent with evidence given by another applicant, Mr Hanke, that Mr Maloney said the position would be an ongoing one. 21 Mr Allgood was, at all material times, the General Manager of SESG. Mr Maloney said that he might have discussed with Mr Allgood the questions which would be asked in the interviews of Mr Murrell and the other two contenders, Mr Hanke and Mr Stowers. Mr Allgood did not participate in the interview. Mr Allgood gave evidence in an affidavit filed in the proceeding that: "I was advised by Mark Maloney and Steve Windisch that when they interviewed Murrell for the position in late 1998 they advised him that the position would be reviewed in 6 months time." That evidence appears to be a reference to the fact that Mr Murrell's yearly appraisal was due about six months after his appointment. It appears that Mr Allgood interpreted the advice from Mr Maloney and Mr Windisch to mean that Mr Murrell was appointed for a probationary period of six months. That interpretation was clearly wrong. Acting on that erroneous interpretation Mr Allgood wrote to Mr Murrell on 1 June 1999 in the following terms: "1 June 1999 Robert Murrell SESG Gatehouse Initially on 12.12.97 you were offered Casual employment with CORE as a Casual Prison Officer working on the Barwon prison perimeter security. Since 22 November 1998 you have been offered casual employment as the OIC of the perimeter security team. When you were interviewed for this role it was agreed that you would perform the role of OIC perimeter, responsible for security functions of the gatehouse duties at HM Prison Barwon, for a six month period. This position is paid at the Senior Prison officer Casual rate. At the expiration of the six month period the idea was for other casual employees to be given the opportunity to perform the OIC role. This is consistent with the established practise of rotating casual employees through this position to give them experience in performing this role. I have reviewed your continuing casual employment as the OIC perimeter and have determined that you may continue to be offered casual employment at the level of OIC perimeter for a further three months subject to satisfactory performance, at which point it will be again reviewed. Forwarded for your information. W J Allgood Manager Security and Emergency Services" 22 There was no agreement at Mr Murrell's interview that he would occupy the OIC position for six months. The actual situation was as recorded by Mr Windisch in the evidence referred to above. There was absolutely no suggestion at the interview that after the six month period Mr Murrell was to stand aside and allow others to fulfill the second OIC position on a rotating basis. Mr Allgood's alleged three month extension of Mr Murrell's OIC role was without authority and constituted a breach of Mr Murrell's contract of employment. It also constituted a threat to demote Mr Murrell with effect from 1 September 1999. That threat was not carried out, no doubt in part, due to an interlocutory injunction granted by the Court on 23 June 1999. 23 It appears from Mr Allgood's evidence that at some stage Mr Allgood's understanding that Mr Murrell was appointed for a probationary period for six months was transferred into an understanding that Mr Murrell was appointed for a fixed term of six months. Each understanding is divorced from reality. The Court is troubled by Mr Allgood's evidence that when this proceeding is resolved Mr Murrell may be transferred from his OIC position. However it appears likely that in so saying Mr Allgood is merely continuing to act under a misapprehension regarding the correct status of Mr Murrell's employment with SESG. 24 Mr Allgood gave evidence that when he wrote the 1 June 1999 letter he knew these proceedings were on foot. But his evidence in his affidavit was that the "sending of the letter had nothing to do with the proceedings nor Murrell's involvement in those proceedings". Mr Allgood was not directly challenged on that evidence. The Court accepts that evidence although as counsel for the respondent conceded Mr Allgood's "timing was not fantastic". The amendment to the application raising the Part XA allegations had been made in May 1999. Mr Allgood was alive to those issues at the time he wrote the letter. Whilst the letter did constitute, as a matter of law in the circumstances, a threat to demote Mr Murrell the Court does not believe that Mr Allgood intended that consequence. The Court accepts that he honestly believed that Mr Murrell was not appointed as OIC with the same security of employment enjoyed by Mr Windisch. Mr Allgood was wrong about that and committed an overt act of the kind referred to in s 298K of the Act but that overt act did not occur for a reason referred to in s 298L of the Act. 25 SESG should be very careful to ensure that Mr Murrell is treated appropriately after this proceeding has concluded. If it does not do so it may find itself subjected to a further application under Part XA or other legal proceedings designed to protect Mr Murrell in his employment.

The alleged threat to inflict physical violence on Mr Murrell 26 Mr Murrell in an affidavit filed in this matter said as follows: "On 8 April 1999 I had another conversation with Mark Maloney in his office. He said to me that he did not think I had been loyal in agreeing to be one of the Applicants in this proceeding. He said I should have spoken to him about the matter. He told me the union are "treacherous". He said I might find myself "with holes in my legs 6 months down the track". I understood this to be a reference to "kneecapping", meaning shooting a person through the knee caps. Maloney told me "some staff are cheesed off" with me and that the legal proceedings may have been the reason why Tom Hinkley, one of the other casual prison officers, had had an altercation with me the previous day. I informed Mark that "I may well end up with holes in my legs" but I was in the litigation "for the long run". 27 Mr Murrell alleged that that conversation constituted a threat to him of physical violence by Mr Maloney. It is equally capable of being construed as Mr Maloney telling Mr Murrell that other prison officers may be upset with Mr Murrell because of the proceedings and that they might inflict violence on Mr Murrell. 28 In an affidavit filed in the proceeding, Mr Maloney denied making a threat to Mr Murrell. In his oral evidence he specifically denied saying to Mr Murrell that he might find himself with holes in his legs six months down the track. 29 The allegation that Mr Maloney threatened to "kneecap" Mr Murrell is a very serious one. If made out it would destroy Mr Maloney's career. Although the employer bears an onus under s 298V of the Act the Court considers that it should be especially cautious not to decide matters simply by looking at onus when serious allegations are made with important consequences. The Court has a real doubt on the evidence presented before it about whether Mr Maloney made any direct threat to Mr Murrell. Consequently it does not consider that whatever Mr Maloney said to Mr Murrell about him being an applicant in this proceeding amounted to an overt act within the context of s 298K of the Act.

The graffiti issue 30 The applicants alleged that the employee applicants were insulted, intimidated and humiliated by graffiti directed at them. The Court does not consider that the graffiti to which reference is made in its interlocutory judgment of 23 June 1999, see CPSU v Victoria [1999] FCA 948, constitutes conduct of any kind which is comprehended by an overt act of the type referred to in s 298K of the Act. It amounts to no more than an example of the childish pranks which appear to have been directed at the applicants by non-unionist fellow employees. Mr Murrell and Mr Hutchins have raised legitimate concerns about those pranks through their union. That behaviour was investigated by SESG "on the evidence of Mr Windisch and Mr Maloney" to ensure it would not be repeated.

Additional alleged termination 31 Mr Murrell alleged that Mr Windisch tried to humiliate him by rostering him on duty as a prison officer when another prison officer was acting in the OIC role. The Court accepts Mr Windisch's evidence that such rostering was wrong, isolated and not intended to be repeated. The Court is not satisfied it was an overt act for the purposes of s 298K taken for a reason prohibited by s 298L.

An alleged reduction in the rostered hours of Mr Murrell and Mr Hutchins 32 On 18 June 1999 the respondent undertook, without making any concession that it had deliberately reduced the rostered hours of the employee applicants, that it would ensure that Mr Murrell and Mr Hutchins were rostered in accordance with arrangements which subsisted at the time the substantive application was made to the Court, that is, 12 March 1999. It falls for the Court to consider whether any reduction in the rostered hours of Mr Murrell and Mr Hutchins occurred from 12 March 1999 to 18 June 1999 and if so whether that reduction was initiated due to the filing of this application. 33 Mr Murrell gave evidence that he worked approximately ninety-eight hours per fortnight in the period January to March 1999. He also gave evidence that his hours immediately tapered off "once the court action was lodged". He accepted under cross-examination however that over time his rostered hours had not been consistent. The same can be said for his actual hours worked post-roster. 34 Mr Hutchins, a prison officer at the Barwon gatehouse, alleged that his rostered hours had been reduced from March 1999 until late May 1999 when he requested to be excused from weekend shifts for a period of time to permit his attendance at pre-nuptial classes, prior to his then imminent wedding. However Mr Hutchins gave evidence that in March 1999 he expressed a concern about excessive shifts. In these circumstances it is entirely probable that any reduction in his rostered shifts may have been as a result of that concern. Mr Murrell had also been complaining in or about March 1999 about excessive work as had several other employees. This position was ameliorated for a short period in July 1999 when twelve extra prison officers were recruited to fill a shortfall. The Court accepts that the filling of that shortfall was not designed to deliberately reduce the rostered hours of the employees applicants and/or their workmates. On the issue of whether there was a deliberate reduction in Mr Murrell's hours from March to June and Mr Hutchins' hours from March to May the Court makes the following observations: · The evidence does not support the allegation of a sudden drop off in rostered hours for Mr Murrell or Mr Hutchins in March 1999 or in the relevant periods referred to above. · The Court accepts Mr Windisch's denial that he sought to deliberately reduce the rostered hours of Mr Murrell and Mr Hutchins on account of their involvement in this proceeding. Consequently no breach of Part XA is made out with reference to the rostering issue. Alleged denial of access to training opportunities 35 The Court accepts the evidence of Mr Windisch, Mr Maloney and Mr Polkinghorne, a training officer, that they did not deny training opportunities to Mr Murrell on account of his involvement in the proceeding. The Court also accepts the explanations given by them concerning Mr Murrell's non-selection in particular for a course at which it was decided that it was desirable for Loddon prison to be represented. It is understandable that Mr Murrell was suspicious about his non-selection for training opportunities soon after this action was commenced. However the Court does not believe that the evidence supports a finding that Mr Murrell was denied training opportunities for any prohibited reason contained in s 298L of the Act.

Conclusion on Part XA 36 It follows that the application insofar as it raises allegations of breach of Part XA of the Act must be dismissed. The Court however urges the following on SESG: · Mr Murrell should be treated as an OIC equal in status and employment conditions to Mr Windisch. · A thorough internal investigation should take place into the "kneecapping" allegation. · The workforce should be informed of the right of union members to raise issues through their union without fear of childish pranks being played by non-unionist or anti-unionist individuals. · The method of rostering shifts and allocating training opportunities should be reviewed to ensure as far as possible that equality of access is afforded. Until these steps are taken, notwithstanding the applicants' technical failure on this aspect of the proceeding, a certain offensive odour will linger, perhaps justifiably, in the minds of some about industrial relations at the Barwon gatehouse. Orders 37 Although the matter, insofar as it deals with the award breach claim, has not yet concluded the Court considers it appropriate to dispose of some matters formally in issue in the context of the amended statement of claim and accordingly the Court considers it desirable to make the following orders:

It is declared that the second and third applicants are casual employees within the meaning of Div 5A of Part 2 of the Public Sector Management Act 1992 (Vic).
The application insofar as it alleges a breach of Part XA of the Workplace Relations Act 1996 (Cth) ("the Act") be dismissed.
The application, insofar as it alleges a breach of s 178 of the Act be adjourned for mention at 10.00 am on 6 April 2000. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshsall.

Associate: Dated: 14 January 2000 Counsel for the Applicants: Ms R Doyle

Counsel for the Respondent: Mr F Parry (for 4, 5 and 9 August 1999)

Solicitor for the Respondent: Victorian Government Solicitor (for 4, 5 and 9 August 1999)

Counsel for the Respondent: Mr J Bourke (for 16, 17, 18 and 19 November 1999)

Solicitor for the Respondent: Corrs Chambers Westgarth (for 16, 17, 18 and 19 November 1999)

Date of Hearing: 4, 5 and 9 August 1999 16, 17, 18 and 19 November 1999

Workplace Relations Act 1996(Cth)ss 178, 298K, 298L, 298V

Public Sector Management Act 1992(Vic)

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