IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY Matter No VI-261/1994 B E T W E E N: COLIN RAYMOND MAGGS AND: VICTORIAN ARTS CENTRE TRUST COURT: RYAN J.R. PLACE:MELBOURNE DATE: 14 OCTOBER 1994 REASONS FOR JUDGMENT EMPLOYMENT HISTORY From May 1984 to December 1992 the applicant worked for the Victorian Arts Centre Trust as a stage door keeper. For three and a half years until the end of 1987 he was employed on a casual basis. He was then appointed as a permanent stage door keeper and rose to the position of senior door keeper. By letter dated 1 December 1992 (Exhibit R1) he resigned in writing advising the Deputy Personnel Manager of the Victorian Arts Centre as follows "After much consideration it is with regret that I will be terminating my employment as Senior Stage Door Keeper with the Victorian Arts Centre. In doing so, I will be taking the option of early retirement from the close of my shift on Saturday 12 December". On 18 February 1993 he returned to work at the Centre as a casual stage door keeper. For fourteen months, until 24 April 1994 he was employed on a regular basis and seems to have averaged thirty to forty hours a week shift work with one week only of leave in May 1993. TERMINATION On 12 April 1994, without any warning or consultation, he was summoned to the office of the Manager, Venue Operations, Victorian Arts Centre Trust. The manager, Andrew Moon, advised the applicant that he would not be rostered for any shifts after 24 April because of changes to the rostering arrangements. The applicant's immediate superior, David Anderson, Stage Supervisor, Theatres, was also present but does not appear to have taken an active part in the meeting or, indeed, in the decision. The applicant claims that the decision to stop providing him with shift work as a casual door keeper and the fact that he has not been offered any further shift work amounts to a termination of employment within the terms of Division 3 of Part VIA of the Industrial Relations Act 1988. He claims the termination was unlawful and on 2 May 1994 he applied in this Court for reinstatement and compensation pursuant to Section 170EA. CASUAL EMPLOYMENT - REGULATION 30B The respondent contends that the decision of 12 April effective from 24 April to cease providing the applicant with shift work as a casual door keeper was not a termination within the terms of Division 3 Part VIA. The respondent claims that the applicant was a casual employee engaged for a short period within the meaning of sub-regulation 3 of regulation 30B of the Industrial Relations Regulations and as such an employee is excluded from the operation of sub-divisions B,C,D and E of Division 3 of Part VIA of the Act. In the alternative, the respondent contends that if the cessation of the shift work amounted to a termination under Division 3 of Part VIA it was not an unlawful termination and was not harsh, unjust or unreasonable. Regulation 30B(3) provides that for the purposes of regulation 30B(1)(d) a casual employee is taken to be engaged for a short period unless: (a) the employee is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months; and (b) the employee has, or but for a decision by the employer to terminate the employee's employment, would have had, a reasonable expectation of continuing employment by the employer. The respondent concedes that the applicant was engaged on a regular and systematic basis for a sequence of periods of employment during a period of fourteen months but argues that the applicant did not have and could not have had a reasonable expectation of continuing employment by the employer. The respondent claims the employee would not have had a reasonable expectation of continuing employment because, at a meeting on 7 December 1992 with the Deputy Personnel Manager of the Trust, and the applicant's supervisor, the applicant had raised a possibility of casual work after retirement and had been told that there would be absolutely no guarantee of casual work for him and that any offer of casual work in the future would, as in the case of all casual employees, depend on operational needs making the work available. The fact of the matter is, of course, that casual work was provided for the applicant and on a very regular basis for fourteen months from February 1993 to April 1994. As a matter of construction, I do not accept that employment on a regular and systematic basis for a period of fourteen months can be categorised as a casual engagement for a short period within the meaning of either regulation 30B(1)(d) or regulation 30B(3)(a). I do not accept that an engagement in employment on a regular and systematic basis for fourteen months can be excluded from the operation of sub-divisions B,C,D and E of Division 3 of VIA simply because the employee has failed to demonstrate that he or she had a reasonable expectation of continuing employment by the employer within the terms of regulation 30B(3)(b). In any event, if I am wrong and employment on a regular and systematic basis for a sequence of periods of employment well in excess of six months can ever fit within the exclusion category of "casual employment for a short period" I have no doubt that the applicant, in this case, had a reasonable expectation of continuing employment until the sudden and unannounced meeting of 12 April 1994. The applicant had been provided with thirty to forty hours work a week for fourteen months and no one at any stage warned him or suggested to him that this shift work would be either reduced or brought to a complete and sudden end. This fourteen month period of regular and systematic employment was not a casual engagement for a short period of a type which was excluded from the operation of Division 3 of Part VIA of the Act. The decision of 12 April 1994, effective from 24 April 1994, amounted to a termination of employment within the terms of Division 3 of Part VIA and it is therefore necessary to determine whether it was lawful or unlawful and if unlawful whether the applicant is entitled to remedy and if so what remedy. VALIDITY OF TERMINATION - REVIEW OF ROSTERS The respondent's argument that the termination was valid and was not harsh, or unreasonable or unjust is very much an alternative argument and was made more by inference than by specific submission or by evidence in affidavits or at the trial. However, the argument was mounted by the respondent in the statement of contentions of fact and law filed with the court on 12 August 1994. The respondent contends that the termination of the employment of the applicant as a casual stage door keeper on 24 April 1994 was not harsh, unjust or unreasonable because there was a valid reason for termination based on the operational requirements of the Victorian Arts Centre Trust. A decision was made in early 1994 to reduce the pool of casual door keepers from three to two. This was stated to be "part of an ongoing review of procedures at the Arts Centre aimed at reducing costs and increasing efficiency". REALLOCATION OF DUTIES AND HOURS The process was described as a decision "to rationalise the operation of full-time employee hours and reduce the number of casual stage door keepers required from three to two by allocating a greater proportion of operating hours among full-timers (i.e. full-time permanent door keepers)." The respondent has also described the proposal as one intended to "improve customer service delivery in providing more continuity in terms of regular contact with client companies and people working within the Centre". It was argued that two casual door keepers working longer hours would create greater continuity and familiarity than three casual door keepers irrespective of what spread of hours was allocated between the three casual door keepers. SAVINGS The respondent never led any effective evidence to demonstrate what savings were achieved by a reallocation of duties between permanent and casual door keepers. Door keeper time-sheets for a six week period prior to the termination of the applicant on 24 April and for the five weeks after the termination were obtained by the applicant through his representative, Ms. Anne Gooley, Assistant Secretary of the Media Entertainment and Arts Alliance. Those time-sheets demonstrate that the new proposal, at least in the early weeks, led to an increase in casual door keeper employment to an average 84 hours a week compared to 71 hours per week prior to the change and a decrease in the average period of employment per week of permanent full-time door keepers from an average of 118.3 hours a week before the change to an average of 84.8 hours a week after the change. The applicant concedes that the re-organisation would have saved some money but the actual degree of the savings is unspecified. This too is a conclusion I have reached but there is certainly no evidence tendered that the proposal in operation has reduced casual door keeper hours or increased permanent door keeper hours. Having said that I do not doubt that some savings were achieved by the simple and acceptable device of rostering permanent door keepers on evening shifts whenever possible and thus reducing the much higher penalty rates paid during such shifts to casual door keepers. However, such savings as have been achieved could have been achieved without reducing the casual pool from three to two. In fact the size of the casual pool is irrelevant to the savings. The crucial element in the savings is the rostering of casuals in the less expensive shifts and the rostering of permanent door keepers in evening shifts thus avoiding extra penalty payments. The actual allocation of shift hours between casual door keepers is also irrelevant to the savings. To be fair to the respondent a decision appears to have been reached that the applicant had the lion's share of the casual shift work allocated to the three casuals but a more equitable allocation of shift work between the casuals could always have been achieved before or after the change. The respondent has never alleged that the applicant was anything other than a competent and experienced door keeper. The only justification for reallocating all the shift work after the review to two casuals and effectively terminating the employment of the applicant seems to be a view explained in part by the Stage Supervisor, Theatres, Mr. Anderson. He suggested that a reasonable wage or reasonable earnings could only be provided by dividing the reduced casual door keeper income (an increase in hours but a decrease in penalty payments) by two rather than three. This is curious in several respects. Firstly, on his own evidence, he took no part in the decision but I think he was loyally seeking to justify Mr. Moon's decision. Secondly, if a management decision was to be reached that the casual door keeper shifts were to be divided only between two rather than three casual door keepers and if the decision to effectively terminate the applicant in favour of his two colleagues was to be made and was to avoid a harsh, unjust and unreasonable outcome, there should have been some reasonable consultation with the applicant and his colleagues. CONSULTATION There was no consultation with any of the door keepers. Neither the applicant nor any other member of the stage door staff, permanent or casual was consulted or given an opportunity to suggest some alternative option. It was suggested by both Mr. Moon and Mr. Anderson that the applicant should be the casual door keeper to be deprived of any further definite employment because in December 1992 he had elected to take early retirement from his then permanent position of senior door keeper. However, that retirement from the earlier permanent position is no justification for treating the applicant unfairly after 14 months of very regular shift work after the retirement. It is irrelevant and it is hard to resist the conclusion that there might be some other unexpressed reason for depriving the applicant of any further shift work after 24 April 1994. FAIRNESS Be that as it may the applicant has been treated unfairly. The only specific reason he has been given for the decision which has deprived him of any employment is that no more shifts are available because of "re-arrangement of rosters to reduce costs, including casual employment". (See Affidavit sworn 25 May 1994 Dennis Kelly, Manager - Administration and Employee Relations, Victorian Arts centre Trust). Firstly, that explanation is not accurate. On the somewhat sparse evidence provided it can be concluded that the re-arrangement of rosters has reduced costs to an unspecified degree but it has led to an increase in casual hours albeit at less expensive rates. Secondly, the reallocation of casual hours is relevant to cost reduction when casual work is reallocated to day shifts but the number of casual door keepers doing the shifts does not impact on costs. The respondent may choose to employ more or less casual door keepers and may choose as a matter of management prerogative to allocate shift hours among them as management sees fit provided that any existing long term casual employees are treated fairly and are consulted and are given notice of any significant changes in rostering systems, valid reasons for the changes and have an opportunity to at least suggest alternative options. At the end of the day it is the prerogative of management as to whether casual employees are used and to allocate work among them. However, a long term employee in circumstances such as arose here must only be terminated lawfully and fairly and is entitled to remedy if termination is harsh unjust or unreasonable. REMEDY Section 170EE sets out the remedies the Court may grant and sub-section (1) and (2) are particularly relevant in the rather unusual circumstances here which involved a long term employee who had spent the last fourteen months of a decade of employment as a door keeper in a casual capacity but regularly working thirty to forty hours per week and regularly working considerably longer hours than the other two casual door keepers. Sections 170EE(1) and (2) read as follows "170EE (1) In respect of a contravention of a provision of this Division (other than section 170B or 170DD) constituted by the termination of employment of an employee, the Court may make the following orders; (a) an order requiring the employer to reinstate the employee by: (i) reappointing the employee to the position in which the employee was employed immediately before the termination; or (ii) appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination; and (b) if the Court makes an order under paragraph (a); (i) any order that it thinks necessary to maintain the continuity of the employee's employment; and (ii) an order requiring the employer to pay to the employee the remuneration lost by the employee because of the termination. "(2) If the Court thinks, in respect of a contravention of a provision of this Division (other than section 170DB or 170DD constituted by the termination of employment of an employee, that the reinstatement of the employee is impracticable, the Court may make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate. REINSTATEMENT It is clear from the terms of sub-section 2 that the Court is required to first consider re-instatement as the primary remedy and only move to compensation if the Court thinks re-instatement is impracticable. I do not consider re-instatement impracticable although what flows from re-instatement of a casual employee is less certain. The applicant is experienced and the respondent has never suggested his performance is other than good. Indeed, he has spent quite some time as senior door keeper and was employed in that capacity when he resigned his permanent employment on 12 December 1992. In respect of a re-appointment to the "position" in which the applicant was employed immediately before termination on 24 April 1994 there are some conceptual difficulties. I am not at all sure that casual door keepers, even those working thirty to forty hours a week, have specifically identifiable "positions" and if they do there maybe another person employed on a casual basis in that "position" if it can be said to exist as a "position". The alternative of appointment to another "position" on terms and conditions no less favourable than those in which the employee was employed immediately before the termination is more appropriate. However, those terms and conditions did not include or provide ongoing entitlement to thirty or forty hours work a week or any entitlement to particular shifts and the penalty rates that go with certain shifts. I consider the terms and conditions under which the applicant was employed created a reasonable expectation that he would continue to be offered at least an equitable share of casual work available. He was required to make himself available, as rostered, and management always had, and still has, the right to allocate hours of work. I consider that an order of re-instatement must take account of the roster changes made by management for good and lawful reasons and must take account that such changes constitute reasonable operational requirements. I consider that an order for re-instatement entitles the applicant initially to an equitable share of overall casual hours, no more and no less. Thereafter, management may allocate casual hours as it sees fit provided that long term casuals like the applicant, are consulted and given notice of significant changes in the rostering system and an opportunity to make suggestions in respect of such changes. LOSS OF REMUNERATION An order requiring the employer to pay to the employee the remuneration lost by the employee because of the termination also presents difficulties. I have concluded that a reasonable sum would be one which represents a payment at ordinary time of one third of the casual hours allocated to casual employees from the commencement of the first casual shift after 24 April 1994 to close of the last casual shift worked before 14 October 1994. I am assuming that during this period actual casual hours were generally shared between two casual employees. After all, this was one of the major planks in the new rostering system. I am aware that more than five months have passed since the applicant was terminated, and that, had he been working, he would have often received penalty rates. However it is impossible to assess precisely the "remuneration lost by the employee because of the termination". His hours of work and the hours on higher penalty could have been legitimately and substantially reduced and, in my view, would have been so reduced had his employment continued under the new system. ORDERS I propose to order re-instatement and defer an order on lost remuneration. I require within seven days, an affidavit from the respondent indicating the total of casual hours worked by casual door keepers from the first casual shift after 24 April 1994 to the close of the last casual shift before 14 October 1994 and the rate of pay at the ordinary hourly rate which would be applicable. On receipt of the affidavit I will make an order pursuant to Section 170EE(b)(ii) and it will be based on a calculation as outlined above. I do not propose to make an order purporting to maintain continuity of employment pursuant to 170EE(b)(i) but I direct that the Order below be drawn and settled by the Registrar pursuant to Order 36 Rule 5 and entered by the Registrar pursuant to Order 36 Rule 9(2). ORDER (1) The applicant be re-instated as a casual door keeper and initially allocated an equitable share of work available to casual door keepers and that the re-employment commence from the first practicable shift on or after 21 October 1994. (2) By 21 October 1994 the respondent file an affidavit indicating (a) total of casual hours worked by casual door keepers from the first casual shift after 24 April 1994 to the close of the last casual shift before 14 October 1994 (b) the rate of pay at the ordinary hourly rate which would be applicable to the applicant. (3) An order pursuant to Section 170EE(b)(ii) to be made in Chambers on 23 October 1994. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan. Associate : Date : Appearances: Applicant : Ms. Anne Gooley, Assistant Secretary Media Entertainment & Arts Alliance Respondent Mr. John Bates, Manager Industrial Relations, Entertainment Industry Employers Association) Date of Hearing : 4 and 5 October 1994 Judgment : 14 October 1994 CATCHWORDS INDUSTRIAL LAW - Termination of employment - Complaint of unlawful termination of employment in contravention of Division 3 of Part VIA of the Industrial Relations Act - early retirement - resumption of regular employment on a casual basis - average of 30 to 40 hours employment a week for 14 months - engagement for a short period - engagement on a regular and systematic basis - reasonable expectation of continuing employment - review of rosters - consultation - reinstatement - assessment of loss of remuneration. Industrial Relations Act 1988, S170EA S170EE Regulation 30B COLIN RAYMOND MAGGS V VICTORIAN ARTS CENTRE TRUST Before:Ryan JR Place: Melbourne Date 14 October 1994