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

CATCHWORDS: industrial dispute - industrial action - stop work meeting - warning letters - the wearing of trade union badges - refusal to obey directions - standing down of employees

LEGISLATION CITED: Industrial Relations Act 1996

Australian National Airlines Commission v. Robinson (1977) VR 87 Australian Tramway Employees Association v. Prahran and Malvern Tramway Trust (1913) 17 CLR 680 Automatic Fire Sprinklers Pty Limited v. Watson (1946) 72 CLR 435 BlueScope Steel (AIS) Pty Limited Bulk Handling Dispute Case [2005] NSWIRComm 1129 BlueScope Steel (AIS) Pty Limited Electrical Trades Dispute Case [2005] NSWIRComm 1065 Burswood Resort (Management) Limited v. Australian Liquor, Hospitality and Miscellaneous Workers' Union (2000) WASCA 386 Csomore v. Public Service Board of New South Wales (1986) IR 275 CASES CITED: Re Dispute between the Metropolitan Meat Industry Board and the Transport Workers' Union of Australia (1952) 107 IG 28 Dwyer v. Craig-Williams Pty Limited (1959) AR 407 Federated Storemen and Packers' Union Case (1988) 22 IR 198 Hutchinson v. Metal Manufacturers Limited (1948) AR 818 Maldoc Pty Limited v. Bollard - unreported R v. Darling Island Stevedoring and Lighterage Company Limited, ex parte Halliday and Sullivan (1938) 60 CLR 601

APPLICANT Bernard Govind Shop, Distributive and Allied Employees' Association LEGAL REPRESENTATIVES:

RESPONDENT Michael Cooper Employers First

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Shop, Distributive and Allied Employees' Association and Wollongong UniCentre Limited

Dispute Notification under S.130 of the Industrial Relations Act, 1996 re warning notice and the deduction of wages for the wearing of badges

Preliminary 1 On Tuesday, 31 May, 2005, acting pursuant to the provisions of S.130 of the 1996 Industrial Relations Act, the Shop, Distributive and Allied Employees' Association lodged a notification of a dispute with Wollongong UniCentre Limited (the University UniCentre Unishop). In the S.130 notification the SDA recorded that the UniCentre:

"...has issued employees with written warnings threatening to terminate their employment; and has proceeded to suspend employees without pay..."

The shop employees had attended a stop work meeting for two hours on Friday, 27 May, 2005 and had received a formal warning for doing so. Some of the UniCentre employees had at that time been wearing prominent red badges indicating: "...Stop: You're being served by a low paid worker. Support a shoppie..."

The UniCentre had refused them access to work whilst they wore the badges. 2 The S.130 notification came before me for a conference on Thursday, 2 June, 2005 (in Sydney). I recommended that the employees resume work and that they refrain from wearing the badges which I believed to have been provocative - and which I was convinced did not advance their claims for a wage increase in any constructive way. I also recommended that any suggested termination of their services not go ahead. I adjourned the SDA's S.130 notification for further conference on Monday, 20 June, 2005 (in the Commission's premises at 90 Crown Street, Wollongong). 3 The employees resumed work following the proceedings before me on Thursday, 2 June, 2005, removing the badges they had been wearing. After these developments what remained was claim by the SDA on behalf of its members who had worn the badges for the two days that they had been stood down without pay by the UniCentre management - on Wednesday, 1 June, 2005 and Thursday, 2 June, 2005. The SDA has also sought the removal of the warning notices against the employees. 4 Conciliation failed to settle the matter. I programmed it for arbitration in a hearing on Monday, 22 August, 2005 (in Wollongong) and Thursday, 25 August, 2005 (in Sydney), issuing the certificate of attempted conciliation required by S.135 and lodging it in the prescribed manner. In the hearing Mr Govind represented the SDA and Mr Cooper represented the UniCentre and Employers First. Annexed to this decision is a list of the witnesses called to give evidence in the hearing by either Mr Govind or Mr Cooper . There are differences in recollections of events by witnesses in this hearing but, in my opinion, those differences in the evidence are not on matters of any substance to affect the determination of the issues actually in dispute before me and I have not concerned myself with them.

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:

"...I wish to draw your attention to the stop work meeting...whereby you participated in unlawful industrial action. Your actions have seriously hindered UniCentre's ability to continue providing services and subsequently was forced to close the retail outlet during the lunchtime period.... In addition to notifying that your pay will be deducted two hours, we warn you that future participation in such action may result in your dismissal..."

Warning letters of that nature were drafted by Mr Clark for thirteen shop employees (Ms Anne Anderson, Ms Holly Bennett, Ms Natalie Bull, Ms Denise Gracie, Ms Susan Hedges, Mr Peter Rattenbury, Ms Joanne Robinson, Ms Julie Sands, Mr Robert Sutherland, Mr Matthew Warth, Mr Ian Watt, Ms Joy Willis, and Ms Dolores Zammit). 11 From Monday, 23 May, 2005 the UniCentre employees had also begun wearing the red badges authorised by the SDA to the effect that customers of the UniCentre were being served by a low paid worker. There was a face drawn on the badge with a frown on it and at the bottom of the badge there was the logo of the SDA and a notation to the effect that the badge was authorised by it. Mr Clarke indicated in the affidavit which formed the basis of his evidence in the hearing that:

"...the badges...implied that the employees being engaged by the UniCentre in the shop were not being paid appropriate wages, which in turn implied that the employees were being exploited by the UniCentre..."

In fact, the badge seems to me not to have been directed exclusively to the UniCentre alone: it was of more general application, suggesting that all shop assistants were low paid workers. 12 But the badges have to be seen in the context of a wider industrial campaign, in my opinion. A brochure was being handed out at that time to customers by the UniCentre shop assistants. The brochure, also authorised by the SDA, asserted that the UniCentre staff were "...among the lowest paid workers on campus..." and that they had "...tried to enter into negotiations with UniCentre for an enterprise agreement..." but had failed. The brochure stated:

"...As a valued customer we seek your support and understanding as we campaign for a better deal..."

13 The UniCentre shop staff had worn the badges intermittently for some time, apparently without it drawing any response from UniCentre management at first. Mr Clarke claimed in his evidence that he had not observed the staff wearing the badges. There was some doubt that he was, in fact, in the store for much of the time. However, the general manager had apparently been in the store from time to time and, on one occasion, was served by a shop assistant (Ms Bull) whilst she wore the badge. Mr Steve James, the store manager, had observed the staff wearing the badges but had not read them and assumed that they were for some charity and, as such, would not be a matter of concern for the UniCentre management. Mr Clarke claimed that the fact that some employees were wearing the badges did not actually come to his notice until Monday, 30 May, 2005. 14 At that time Mr James had discovered that the brochures I described earlier in this decision were being distributed by staff to customers. He spoke to Mr Clarke about the brochures and Mr Clarke instructed him to remove them from the point of sale. And it was at that time Mr James described the badges to Mr Clarke and was told by him to instruct the employees to remove them. 15 Some of the employees did remove the badges but other employees declined to do so and on Tuesday, 31 May, 2005 Mr Clark approached each of the employees wearing the badge individually and together and directed them to remove it. They declined to do so again. Mr Clark gave them a further letter, viz:

"...Further to the notification given to you by your manager on Monday, 30 May, 2005 and Tuesday, 31 May, 2005, you are reminded of the lawful and reasonable direction to remove any unauthorised badges during work hours. Failure to do as instructed may have consequences for your employment..."

Those letters were provided to Ms Anderson, Ms Bennett, Ms Bull, Mr Rattenbury, Ms Sands, Mr Warth and Ms Zammit. Ms Suzanna Presilski, a casual shop assistant had not attended the stop work meeting on Friday, 27 May, 2005 but she wore the badge and was also given the letter on Tuesday, 31 May, 2005. And immediately Mr Clarke began standing down those employees without pay, instructing them to leave the building. 16 The UniCentre store opened again on Wednesday 1 June, 2005 but operated with temporary employees who had elected not to wear the badges and representatives of UniCentre management. Any employee remaining wearing a badge was at that time refused entry to the shop. Mr Clarke informed Mr James to tell staff that they were all welcome back on site at any time if they took their badges off but they would be declined entry if they continued to wear them.

Jurisdiction 17 The SDA has sought the removal of the warning notices to the employees who attended the stop work meeting on Friday, 27 May, 2005 and payment for the time that they were stood down without pay for wearing the badges. I am satisfied that the SDA claims before me fall within my jurisdiction in arbitrated S.130 proceedings. To begin with, the wearing of the badges authorised by the SDA is unarguably an industrial matter for the purposes of S.130 proceedings [ Australian Tramway Employees Association v. Prahran and Malvern Tramway Trust (1913) 17 CLR 680. 18 And as far as the SDA claim for the removal of the warning notices is concerned, in terms of S.136(1)(a) I am authorised in arbitrated S.130 proceedings to:

"...make a recommendation or give a direction to the parties to the industrial dispute..."

Rule 84 suggests that the jurisdiction under S.136(1)(a) to give a "direction" is primarily concerned with procedural issues, viz:

"A tribunal may generally give all such directions and do all such things as in its opinion will enable expense or delay to be reduced and will help to achieve a prompt conduct of the proceedings and the just determination of the matter or dispute and the equitable disposal of proceedings."

But I have made directions under S.136(1)(a) in the past with respect to claims for the removal of warning letters. As I suggested in my unreported decision of Wednesday, 15 June, 2005 in the BlueScope Steel (AIS) Pty Limited Electrical Trades Dispute Case [Matter Nos.IRC 4510 and 4763 of 2004 at pp.17 and 18] jurisdiction under S.136(1)(a) to make a "direction" does not appear to have any real limitations on it but is something which, subject to the right of appeal, is final and binding on the parties. For instance, in the unreported decision of the Full Bench of the Commission (Wright J - President, Walton J - Vice President and Connor C) in the Teacher's Case [Matter No. IRC 6326 of 1999] interlocutory directions made at first instance under S.134(2), ie in the conciliation phase of an industrial dispute (and consequently ahead of the issuing of the S.135 certificate of attempted conciliation), still grounded an appeal (with respect to which leave was not ultimately granted). 19 As far as the claim by the SDA for payment for lost time by the employees is concerned, it may be pressed as a small claim under Ss.379 and 380 on behalf of each of the employees it has represented. In particular, S.380(1) provides as follows: "An industrial organisation may, during any proceedings before the Commission, make an application for an order under this Part and for the application to be dealt with under S.379 (small claims procedure)."

It is therefore Ss.379 and 380 which is the source of my jurisdiction for that SDA claim. That remedy is confined to an "industrial organisation", ie the SDA in this hearing, a position confirmed by the Full Bench of the Commission (Glynn and Hungerford JJ and Connor C) in its unreported decision of Wednesday, 10 February, 1999 in Maldoc Pty Limited v. Bollard [Matter No. IRC 2710 of 1997]. The maximum amount of any order for a small claim is confined by S.379(3); it presently stands at $10,000.00 for each individual employee - which, of course, is not a problem in this hearing as in no case will the claim made for any employee exceed that amount.

The Warning Letter 20 In the Federated Storemen and Packers' Union Case (1988) 22 IR 198 Macken J of the former State Industrial Commission commented (at p.199) as follows: "…It is trite law that strikes do not usually give rise to the exercise of an employer's right to summarily dismiss for misconduct. One reason for this is that a strike is usually a group act following a decision by a group of employees or a union to which they may belong… A second reason for the fact that common law rights of termination of employment are rarely exercised in connection with strikes or bans on the performance of work is to be found in the fact that such industrial activities can rarely be held to evidence a firm and final determination on the part of an employee to abandon the employment contract…"

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.

The Badges 24 The remaining issue before me for determination is whether or not the UniCentre was obliged to pay the employees during the times that they were wearing the badges. As Mr Govind indicated in his submissions, there was ordinarily no right to suspended an employee. In the absence of express provision in an award or special legislation, an employer has no power to suspend an employee on weekly hiring for any reason [ Hutchinson v. Metal Manufacturers Limited (1948) AR 818 and Re Dispute between the Metropolitan Meat Industry Board and the Transport Workers' Union of Australia (1952) 107 IG 28]. But this case turns rather on the obligations of the employees to comply with the terms of their contract of employment and whether the wearing of the badges constituted a breach of that contract of employment by them. 25 There are, of course, mutual obligations in any contract of employment: the obligation of the employee is to work for the employer and the obligation on the employer is to pay wages for that work - and the payment of wages is essentially dependent upon the employee providing a service to the employer. No employer is obliged to pay employees for times when they are refusing to perform work required of them. That is to say, the refusal of an employee or a group of employees to perform any work which they are properly and reasonably directed to perform is tantamount to a strike. 26 In that respect there is the familiar explanation of the position by Dixon J in Automatic Fire Sprinklers Pty Limited v. Watson (1946) 72 CLR 435 at pp.465 and 466, viz:

"...The common understanding of a contract of employment at wages or salary periodically payable is that it is the service that earns the remuneration and even a wrongful discharge from service means that wages or salary cannot be earned however ready and willing the employee may be to serve and however much he stand by his contract and decline to treat it as discharged by breach... His only remedy is in unliquidated damages for wrongful dismissal...

The wages are incident to the subsisting relationship of master and servant. A master who sends his servant upon a holiday upon full pay can be sued for wages under the contract, although not on a common count for work and labour done. They also serve who only stand and wait. Difficulties too arise from the fact that a refusal to work on the part of a servant, who neither leaves his master's service nor is discharged, may disentitle him to wages for the period of the refusal. That is for non-fulfilment of the conditions by which wages are earned. But, broadly speaking, it is enough to say that wages are for the service reasonably demanded under a subsisting relationship of master and servant..."

And Rogers J of the State Supreme Court in Csomore v. Public Service Board of New South Wales (1986) IR 275 also commented in that respect (at p.281) that:

"...unless an employer waives the usual requirement of a contract of employment that an employee perform the full range of work properly assigned to him or unless the award under which the employee works makes a contrary provision, payment of wages is conditional upon performance by the employee of the full range of work assigned or, at least, a readiness and willingness to do so..."

27 The employer's direction to perform work, of course, must be reasonable. In the High Court case of R v. Darling Island Stevedoring and Lighterage Company Limited; ex parte Halliday and Sullivan (1938) 60 CLR 601 Dixon J stated (at pp.621 and 622) that:

"...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..."

30 Mr Cooper suggested in his submissions that by wearing the badges the employees had set out to damage the business of the UniCentre. Mr Govind argued that the badges were not directed specifically against the UniCentre but only an assertion that all "shoppies" were underpaid. No doubt when considered against the more specific brochure that the UniCentre staff had been distributing (which described the UniCentre staff as "...among the lowest paid workers on campus..." and highlighted the state of the separate negotiations with the UniCentre management), it is natural that the UniCentre management would regard the badges as being specifically directed against it. But the brochures had actually been removed and to that extent the badges stood alone, in my opinion. 31 The UniCentre provides uniforms without charge to its staff. It has an established policy for uniforms for its staff which I set out as follows:

"...The UniCentre has established a standard uniform which has been registered with the appropriate government body. The registration of our standard uniform will exempt UniCentre from fringe benefits tax and will also allow employees who wish to purchase their own uniforms to claim the expense as a legitimate tax deduction. Our uniform registration number is CW1177. To assist UniCentre to maintain a professional image, designated uniforms must be worn at all times while on duty. Uniforms must be maintained and be clean and presentable. Generally, staff will be supplied with uniforms through our internal ordering system. However, conference and function staff will have their uniforms available at the commencement of each shift.

After a three-month probationary period, staff are able to approach their supervisor for a uniform order... Supervisors are responsible for the uniform budget for their area..."

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.

Conclusion 36 For those reasons, I make the following directions in terms of S.136(1)(a) for the resolution of this industrial dispute:

(i) that the formal warning letters issued by the UniCentre to the employees who attended the stop work meeting on Friday, 27 May, 2005 be removed; and (ii) that the employees who were suspended without pay for wearing the badges that had been authorised by the SDA on Wednesday, 1 June, 2005 and Thursday, 2 June, 2005 be paid for the period of their suspension.

Anderson, Anne shop assistant (casual) Bennett, Holly* shop assistant (casual) Bull, Natalie shop assistant (casual) Clarke, Wayne human resources manager James, Steve manager Oliveira, Robyn* shop assistant Poole, Jacqualine* academic liaison officer Presilski, Suzana* shop assistant (casual) Rattenbury, Peter storeman Sands, Julie* shop assistant Warth, Matthew* shop assistant (casual) Zammit, Dolores* receivals assistant (casual)

• Written statements and affidavits admitted into evidence without the need for cross-examination. - 1 -

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