PSA & the Zoo [2007] NSWIRComm 1080

PSA & the Zoo [2007] NSWIRComm 1080 - NSWIRComm 2007 case summary — Zoe

[18]

Explain hours 7.30-4.15 flex days 1 per m holidays 4 w sickleave 15 ? 9 During her permanent employment she had worked an eight hour day, receiving payment for 7.6 hrs and accruing time towards a paid day off per month roster cycle. She would apply for a flexi day by completing a form and having it approved by her supervisor. She stated that there was a requirement to be flexible in applying for this day. She also stated that she could utilise overtime worked as paid time off. 10 Until the flexi day arrangement was removed in March 2007, Ms Soden had been receiving a flexi day for nearly 20 years. 11 On 26 February 2007, Ms Soden stated that she received an email from a Ms Sue Keen, Finance Manager stating that the Zoo no longer had a policy of paying employees for RDO's on the basis of their having worked an extra 24 minutes per day. She could not remember any meeting concerning the removal of the flexi day prior to the receiving of the email from Ms Keen. 12 She said that she had attended a number of meetings between management, fellow department employees, human resources and her Union without resolving the dispute of the unilateral decision of the Zoo to vary her employment conditions which she did not consent to. She was still unaware of why the flexi day had been removed. 13 She stated that she utilised that flexi day to carry out private business and to visit her family in Cessnock and Bowral. 14 In cross examination she stated that she could not remember the contents of her interview for the position of Purchasing/Stores assistant. She did not remember if comments concerning hours of work, sick leave, flexi days or annual leave were made during the interview as the interview took place some 12 years ago. She was only going by the hand written note found in her file. She did remember that Mr Chris Latham took part in the interview. 15 To her knowledge other employees of the Zoo in retail, IT and quarantine still work a 19/20 day cycle. 16 Mr Sean Andrew Richardson stated that he commenced employment with the Zoo as a casual in approximately September 1993 as a Food Preparation Officer. This became fulltime in December 1994. He continued in this role until August 2005 when he resigned before returning to the same role in March 2006.There were no changes to his employment conditions upon his return.

[19]

During his first period of employment with the Zoo Mr Richardson was receiving one flexi day off per month. He worked from 7.30am to 4.15 pm Monday to Friday accruing 24 minutes per day towards a 19 day 20 day cycle. In 2000 his roster was varied so one day per week he worked from 8.30am to 5.15 pm. Everyone in his Department worked the same 19/20 day cycle. He stated that he took his flexi day after discussions with his direct manager taking into consideration the workload, how up to date he was in his job and the needs of fellow employees. He also took time off as a consequence of working overtime. 17 Mr Richardson stated that he, Ms Soden and the other food preparation officer Mr Gleichman rotated between the food preparation officer's job, the stores officer's job and the purchasing officer's job as required. 18 On or about 26 February 2007 without any prior notice or consultation he received an email from Ms Sue Keen, Finance Manager who stated that the Zoo no longer had a policy of paying employees for RDO's. 19 He stated that he did not accept this variation to his conditions of his employment with the Zoo. The effect of the loss of the flexi day has had a significant impact on his family as he used the flexi day to attend to family affairs and school activities. 20 He said he attended a meeting in March 2007 with fellow employees, Mr John Doyle (PSA representative), Ian Latham, Heather Turner and Sue Keen. Management stated that having a 19/20 day cycle was a hindrance to productivity. Mr Richardson asked during the meeting of examples where there had been a drop in productivity due an absence of an employee but he did not receive a reply. A new roster was tabled which showed the deletion of the flexi day and the inclusion of long and short days being worked. 21 The roster that they now currently work is a two week roster with long and short days where each week adds up to 38 hours. There is no averaging between weeks. Mr Richardson stated that certain days require more work than others due to specific deadlines requiring to be met, like the receiving of fresh fruit and vegetables which have to be distributed. 22 Mr John Doyle stated that he had worked for the PSA as an Industrial Officer from 9 May 2005 until he retired on 25 July 2007. During that period he had particular responsibilities, one of which included the Zoo. As a consequence of members of the PSA receiving an email on 26 February 2007, he held a meeting at the Zoo with management on 1 May 2007 to discuss the reason for the removal of the flexi day system of rosters. It was his view that there had not been any consultation with his members prior to the change. 23 He stated that 15 to 20 minutes into the meeting he was no clearer as to why the change had taken place. He therefore asked the Purchasing Department's Manager Mr Latham as to whether there had been any problems with the system of employees working a forty hour week and accumulating a day off per week. The response was in the negative. He then asked whether the system had always worked well, to which Mr Latham responded "Yes". He had asked what they meant by efficiencies and was advised that the place would just work better. 24 He stated that neither the PSA or staff were consulted regarding the change to the roster. In his view the Zoo had wrongly interpreted the Award. 25 It was the submission of Mr Gibian for the PSA that the entitlement to work a pattern of hours so as to enable them to take one flexi day per month constituted a contractual entitlement and the Zoo was not entitled to remove that entitlement without consent or agreement of the staff involved. The PSA sought for the Commission to make an award or order entrenching the long-standing practice. 26 Their submission was that the two witnesses for the PSA indicated that they accepted employment on the basis that a flexi day was a condition of their employment. The oral exchange between the parties formed part of their conditions of employment as the written letter of offer of employment could not of itself be a complete record of the terms of employment. 27 In the alternative it was argued that a term may be implied into a contract of employment by reason of custom and practice at the work place. This practice of employees working a roster that provides a flexi day every four weeks had existed for very many years. Ms Soden had been working such a roster for twenty years, including the last ten years in the Purchasing Department.

[21]

30 Ms Heather Turner was the only witness for the Zoo. 31 Ms Turner stated that she is employed by the Zoo in the position of Manager Employee and Organisation Development. She said that the Purchasing Department is located at Taronga and has five employees in the department. 32 She confirmed that there employment is regulated by the Zoological Parks Board of NSW Employees (State) Award (the Award). Attached to her statement were extracts from the Award covering the Hours clause over a number of years. Since 1992 the Award has allowed for a 38 hour week. The Award does not prescribe how the average 38 hours is to be worked. She also agreed that the clause did not set a minimum or maximum days that could be worked in the week. 33 It was her understanding that on the morning of 26 February 2007 the Manager of the Purchasing Department verbally advised his staff that rosters would change so as 152 hours would be worked in 20 x 7.6 hour days. Prior to that date she had not been made aware of any rostering problems or of any changes that were about to take place. She also understood that this verbal advice was confirmed by an email from Ms Keen later in the morning. 34 The change in the deletion of the flexi day commenced on 8 March 2007. She understood that the change in roster was to provide a full compliment of staff 5 days a week, each week. The appropriate seven days notice for the change of starting and finishing times was given. 35 She stated that she attended a meeting on 4 April 2007 with John Doyle and Michael Shields. They wanted the flexi day to be reinstated. Discussion was also had on the interpretation of the Hours clause in the Award. There was an open invitation for the PSA to provide alternative rosters that met the needs of the business. Later in cross examination it was made clear by Ms Turner that a roster that incorporated a flexi day would not be acceptable to the Zoo. 36 The meeting on 1 May 2007 provided the rationale for the change was explained. The operational needs of the business were not being met by working an 8 hour day. As a consequence of a general review of rosters it was found that there were clear peak and trough days in food preparation and rosters should be aligned to the actual work patterns. 37 She stated that employees are employed in accordance with the Award and that whilst employees are advised of their working patterns it is not a condition of their employment. No mention of a flexiday is included in the Letters of Offer or Position Descriptions of Ms Soden or Mr Richardson. 38 She did state that it would be normal in the interview stage to advise future employees what their working hours would be. 39 In comparison to other employees (under a different award) of the Zoo, some employees have the flexi day entitlement prescribed in their award. 40 It was her interpretation that the Hours Clause in the Award did no limit the days on which an employee worked being altered or the starting and finishing times on such days. 41 She also stated that it was the Zoo's practice that where it offered an employee something that is not in the award to specifically record it. 42 In final submissions Mr Davis stated that there was no evidence before the Commission that their had been an expressed offer and an acceptance with the respect to providing a flexi day as part of the contract of employment for the two employees who gave evidence.

[41]

Dealing with the characteristics of a usage , Halsbury says at pp. 184-186: Every usage, whether in respect of a particular trade, branch of business or occupation, and whether affecting land or not, must be notorious, cetain, and reasonable, and it must not offend against the intention of any legislative enactment. Every usage must have acquired such notoriety in the particular market or branch of trade or in the department of business or amongst the class of persons who are affected by it, that any person in that branch or department or class who enters into a contract of a nature affected by the usage must be taken to have done so with the intention that the usage should form part of the contract. Notoriety in this connexion does not mean that it must be known to all of the world, nor even that it should be known to the person against whom it is asserted; but it means that it must be well known at the place to which it applies, and be capable of ready ascertainment by any person who proposes to enter into a contract of which that usage would form part. Every usage must be certain. It must be uniform as well as reasonable, and in order to be incorporated as a term in a written contract it must have just as much certainty as the written contract itself. A usage is not , however, bad for uncertainty merely because it depends in its operation upon what a tribunal thinks to be reasonable. 66 I do not believe it was open to the Zoo to unilaterally change the terms of the employee's contract by removing the flexi day. No evidence was brought before this Commission to show that consent existed from any of the employees of the Purchasing Department for this action to take place. 67 In summary it is my finding that the evidence demonstrated a long standing usage or practice involving employees of the Purchasing Department working a particular roster that incorporated a flexi day and that this usage or practice I consider provided a fair and reasonable condition and should not be discontinued. 68 I believe it is allowable for the Zoo to formulate rosters, in accordance with the Award that in a four week( 152 hours) period, provide for both a flexi day and days of duration of hours worked that meet the needs of the Purchasing Department taking into consideration the highs and lows in the daily work load that is experienced.

At a glance

Court

Decision date

Before

Source

Judgment (44 paragraphs)

Cited By (2)