Shop, Distributive and Allied Employees' Association v. Wollogong UniCentre Limited [2005] NSWIRComm 1138

Shop, Distributive and Allied Employees' Association v. Wollogong UniCentre Limited [2005] NSWIRComm 1138 - NSWIRComm 2005 case summary — Zoe

[16]

The Dispute 5 There is some history to this matter - stalled negotiations for a new enterprise agreement to cover the staff employed in the UniCentre - and the S.130 notification by the SDA has to be considered in that light. On Monday, 28 February, 2005 a S.130 notification of an industrial dispute with the SDA had been lodged for and on behalf of the UniCentre. The industrial dispute arose out of an unauthorised work stoppage on Wednesday, 23 February, 2005. An SDA organiser had arrived at the shop at midday on Wednesday, 23 February, 2005 and approached the retail centre manager with a request that SDA members would be holding what she described as an "information session". That work stoppage - and I regarded it as such, despite its description as an "information session" - occurred although the shop management had indicated that it was a busy trading period. The work stoppage, in its view, constituted an illegal work stoppage and a breach of the established grievance settling procedure. 6 The UniCentre has in the past afforded the SDA the opportunity to conduct paid meetings with its members so long as the meetings do not disrupt retail operations and 24 hours notice was given by the employees. The procedure which had apparently developed was that the SDA would hold two such paid meetings, back-to-back, and half the staff attended each meeting. In that manner the shop continued to trade. No prior notice was given of the "information session" on this occasion and it seems clear to me that it partly had as its purpose causing unnecessary inconvenience to the UniCentre. 7 The matter came before me for a conference on Tuesday, 1 March, 2005 (in Wollongong). It was adjourned for mention on Friday, 11 March, 2005 (in Sydney) but that day was vacated and replaced at the request of the SDA, with the consent of the UniCentre, for further mention on Tuesday, 29 March, 2005 (in Wollongong) that was also vacated and stood over generally but revived for a mention on Monday, 11 April, 2005 (in Wollongong) also at the request of the SDA. The matter was adjourned for further mention on Tuesday, 26 April, 2005 (also in Wollongong) and stood over generally at that time. 8 At issue in the proceedings were stalled negotiations initiated by the SDA for an enterprise agreement to cover the employees of the UniCentre. In the proceedings before me on Tuesday, 1 March, 2005 I had recommended that further discussions take place between the parties and that the SDA proceed in future in accordance with the established grievance settling procedure, ie. without unannounced stop work meetings. But those further discussions between the parties failed to bring the negotiations any closer to finality. The UniCentre has consistently indicated that it was not prepared to negotiate the separate enterprise agreement which was being sought by the SDA and wished instead to rely on the University Unions (State) Award, a common rule State award which has exceeded its nominal term. 9 To date the SDA has not lodged any application for variation of the State university unions award - admittedly a longer and more time-consuming process, involving as it does a range of different employers (and I understand other trade unions with an interest in university union employees). Nor has the SDA lodged a separate State enterprise award to cover the UniCentre staff. It is trite to say that the Commission cannot force the parties to agree on anything. As I indicated in my unreported interlocutory decision of Wednesday, 24 August, 2005 in the BlueScope Steel (AIS) Pty Limited Bulk Handling Dispute Case [Matter No.IRC 7187 of 2004 at p.10], in cases where the parties are unable to reach agreement the Commission may proceed only by way of a State award. If the negotiations for an enterprise agreement are not producing a result in the employee's interests, the SDA should proceed in that manner. 10 The current S.130 notification emerges out of those stalled negotiations for an enterprise agreement. On Friday, 27 May, 2005 the employees attended another "information session" for two hours to discuss the negotiations for the proposed enterprise agreement and when they resumed work they received a letter from Mr Wayne Clark, the human resources manager of the UniCentre, described as a "...first written warning..." and speaking of an "...abandonment of work..." by the employees, viz:

[32]

Of course, we are not talking about dismissal of the employees in this hearing, let alone summary dismissal for misconduct. But Mr Clark's warning letters of Friday, 27 May, 2005 does threaten dismissal in future - "...we warn you that future participation in such action may result in your dismissal...". 21 During his submissions on Thursday, 25 August, 2005 Mr Cooper volunteered on behalf of the UniCentre that it was prepared for the warning notices to have a finite life of six months from that date, ie they would remain in place only until Wednesday, 25 January, 2006, unless there was further industrial action taken by the employees. That offer was considered by Mr Govind but rejected by him. Whilst I recognise that offer made by Mr Cooper as a genuine attempt on the part of the UniCentre to settle this part of the claim, it still remains as matter for my determination. 22 And I have reservations over any proposal to treat industrial action as a matter to record, for disciplinary purposes, on the personal files of individual employees who take part in industrial action. Generally speaking, I do not believe that it is appropriate that attendance at a stop work meeting, even when it constitutes a clear breach of established grievance settling procedure as it did on this occasion, should be the subject of warning letters to the employees concerned. I question whether such formal warnings are, in fact, proper to include as part of any disciplinary measures directed against individual employees. I therefore believe that the warning notices should be removed from the employment record of the employees against whom the warning notice was given. 23 As Macken J indicated in the Federated Storemen and Packers' Union Case , industrial action is a group act and should be considered in that light. The proper course for such industrial action was for the UniCentre to refer the matter to the Commission for further recommendations or, if necessary, dispute orders. In this case, the UniCentre could have simply sought the revival of its earlier S.130 notification which remained dormant since it was stood over generally by me on Tuesday, 26 April, 2005.

[39]

"...if a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey depends at common law upon it being reasonable. In other words, the lawful commands of the employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable. What is reasonable is not determined in a vacuum..." 28 Mr Govind has argued that the employees whose wages were docked were at all times ready and willing to perform the full range of work required of them. Mr Govind claimed that they were prevented from doing so and therefore they were locked out. A lock out has traditionally been confined to cases where a place of work is closed, or work is suspended, by an employer, for its employees, or any group of them, with a view to compel them to accept certain terms of employment in dispute. However, there can be no real lock out of employees if they have contemporaneously and unilaterally imposed their own conditions, contrary to their contract of employment, on their work by industrial action. Kelleher J of the former Commission in Dwyer v. Craig-Williams Pty Limited (1959) AR 407 took the view (at p.419) that no lock out had occurred on certain days when the employees were taking part in an illegal strike. 29 And as Mr Cooper submitted in the hearing, whilst the employees had indicated their willingness to work, they had refused to take off the badges after being directed to do so by UniCentre management. Employees are not entitled to make their own rules as to the fundamental conditions under which they are actually employed. In Australian National Airlines Commission v. Robinson (1977) VR 87, for instance, the Full Bench of the Supreme Court of Victoria (Young CJ, Menhennitt and Griffith JJ) considered the circumstances of an airline pilot who presented himself for work with the prospect that he may cease work as part of an industrial campaign orchestrated at that time by the Australian Federation of Airline Pilots and, consequently not work for his return flight in breach of his service contract. The Full Bench rejected that, in those circumstances, he was, in fact, ready and willing to perform his contract of employment and denied him remuneration for the period of the threat of industrial action, commenting (at p.93) that: "...even if he had been provided with an aircraft to fly to Hobart, it did not follow that he would be prepared to return it to Melbourne as scheduled... In those circumstances, the plaintiff failed to show, in our opinion, that he was ready and willing to perform his contract... It is not decisive that no strike had by then been called. The plaintiff was, in effect, indicating that he was only ready and willing to perform his contract if a new term were added enabling him to stop work for 24 hours if instructed by the executive of the Federation to do so..."

[43]

There is therefore a dress code at the UniCentre store. 32 The UniCentre management regards as unobjectionable some adornments to the uniforms worn by the employees - a ribbon in a female employee's hair, a broach or a badge provided for some charity, eg Legacy. Recently, the employees had worn daffodils for cancer research without any problem. On occasions, there were encouraged to wear badges to emphasise Eftpos services to customers. But, in Mr Clarke's view, the badges in question were not authorised adornments to the uniform, that the direction he made for them to be removed was a proper and appropriate direction and the refusal of the employees to remove them actually constituted a refusal of the employees to work as directed. 33 I have already expressed criticism in the proceedings on Thursday, 2 June, 2005 about the employees wearing of the badges: I did not believe then that they served any good purpose for them and they seemed to me then, as they do now, to be an unnecessary distraction from the main objective that the employees were seeking - to obtain improvements in their wages and working conditions. I fail to see how they advanced their position in any constructive manner at all. But did the wearing of the badges actually constituted such a fundamental condition of employment for the staff of the UniCentre so as to deprive them of wages for the times that they were wearing them? I do not believe so. 34 Following the reasoning of authorities like Automatic Fire Sprinlkers Pty Limited v. Watson and Csomore v. Public Service Board of New South Wales , the right of an employer to deprive any of its employees of wages is dependent upon their refusal to perform work properly directed to them. Notwithstanding Mr Cooper's claim to the contrary, to my mind the wearing of the badges did not constitute a refusal of the employees to perform the work required of them: the employees were at all times ready and willing to perform work and the wearing of the badges would have in no way impeded them in the performance of that work. 35 I do not believe that the UniCentre policy on uniforms was breached by the employees actually wearing the badges. I note in that respect that in Burswood Resort (Management) Limited v. Australian Liquor, Hospitality and Miscellaneous Workers' Union (2000) WASCA 386 the Supreme Court of Western Australia (Kennedy, Anderson and Hasluck JJ) held that an employer was entitled to impose uniform dress standards in accordance with its contract of employment which excluded the wearing of badges. But the dress code in that case was more strict than what appears to me to be the case for the staff of the UniCentre. It would appear to me that the UniCentre policy for uniforms is sufficiently flexible to permit some adornments to clothing and, once some exceptions are permitted, it is difficult to draw any line against other adornments with precision - provided they are not of an offensive or obscene nature. I do not regard the wearing of the badge as such a fundamental issue as to constitute an unilateral change to the condition of employment for the staff of the UniCentre so as to deprive them of their wages whilst they were wearing it.

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Cases Cited (6)

Cited By (10)