ALHMWU v Manilla RSL & Ex-Servicemens' Club Limited [2000] NSWIRComm 122

Industrial Relations Commission of New South Wales

CITATION : ALHMWU v Manilla RSL & Ex-Servicemens' Club Limited [2000] NSWIRComm 122 NOTIFIER: PARTIES : Australian Liquor, Hospitality and Miscellaneous Workers' Union, Liquor and Hospitality Divison, New South Wales Branch RESPONDENT: Manilla RSL & Ex-Servicemens' Club Limited FILE NUMBER: IRC 159 of 2000 CORAM: Boland J CATCHWORDS : Dispute - interpretation of award - Club Employees' (State) Award - time for the taking of paid crib breaks during a shift - whether paid crib break to be shown on roster - whether paid crib break to be taken on shift it becomes due - true meaning and intent of various award provisions relating to paid crib breaks LEGISLATION CITED : Industrial Relations Act 1996 Geo A Bond & Co. Ltd (in liquidation) v McKenzie [1929] 28 AR 498 Short v F W Hercus Pty Ltd (1993) 46 IR 128 CASES CITED : Bryce v Apperley (1998) 82 IR 448 Kucks v CSR Ltd (1996) 66 IR 182 Khoury (M&S) v Government Insurance Office of NSW (1984) 54 ALR 639 HEARING DATES: 06/28/2000 DATE OF JUDGMENT: 07/26/2000

NOTIFIER: Mr J Barry for ALHMWU LEGAL REPRESENTATIVES: RESPONDENT: Mr R Morgan for Registered Clubs Association on behalf of Manilla RSL & Ex-Servicemens' Club Limited

JUDGMENT: - 24 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: BOLAND J

DATE: 26 JULY 2000

Matter No IRC 159 of 2000 NOTIFICATION UNDER SECTION 130 BY THE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, LIQUOR AND HOSPITALITY DIVISION, NEW SOUTH WALES BRANCH v MANILLA RSL & EX - SERVICEMENS' CLUB LIMITED Dispute re: failure to roster employees in accordance with the award DECISION 1 This matter involves a dispute between the Australian Liquor, Hospitality and Miscellaneous Workers' Union, Liquor and Hospitality Division, New South Wales Branch ("ALHMWU") and the Manilla RSL and Ex-Servicemens' Club Limited ("the Club"). 2 The dispute is over an interpretation of the provisions of the Club Employees (State) Award ("the Award") relating to the time for the taking of paid crib breaks during a shift and whether the taking of such breaks should be recorded on a roster, along with working hours, for a relevant period of work. 3 The dispute was notified pursuant to s 130 of the Industrial Relations Act 1996 ("the Act") by the ALHMWU on 17 January 2000. Kavanagh J convened a Compulsory Conference pursuant to s 132 of the Act for 20 January and the matter came on before her Honour again on 29 January and 29 February. On 13 March 2000, the Registered Clubs' Association of New South Wales ("RCA"), which represents the Club in these proceedings, wrote to Kavanagh J indicating that it wished to exercise its rights under s 173 of the Act and, therefore, requested that the matter be referred to the President for re-allocation. Given that conciliation had not occurred in relation to the matters in dispute, the notification came on before Kavanagh J again on 17 March and 5 April. On 5 April conciliation before her Honour was unsuccessful and the file was re-allocated to me. 4 Directions in the matter were issued on 19 April 2000 and the matter was listed for hearing on 28 June 2000. 5 Mr J Barry appeared for the ALHMWU and Mr R J Morgan appeared for the RCA on behalf of the Club. 6 Affidavits were filed and served by both parties in the proceedings and these were admitted into evidence without objection. Neither party sought to cross examine on the affidavits. 7 It was common ground between the parties that the Club is covered by the Award, an award made by Patterson C on 2 July 1999. It was also accepted by both parties that pursuant to s 175 of the Act the Commission may, for the purposes of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument). The Award is an industrial instrument within the meaning of s 8 of the Act. It appears, therefore, that in order to resolve the dispute I should proceed to interpret the Award, which I should say, because of its structure and terms, is not an easy instrument to interpret. Issue in Dispute 8 Manilla is a small country town of 2800 people in New South Wales. Manilla RSL employs 18 people. 9 In December 1999 a representative of the ALHMWU visited the Club and a meeting was held between the representative, the ALHMWU's delegate at the Club and the Club's Secretary-Manager. The issue discussed was the rostering of part time employees engaged under the terms of cl 10 of the Award and the ALHMWU's concern that the employees were being required to work for more than five hours without a break for a meal. [cl 10 applies to employees employed after 2 July 1999, when the Award commenced operation. Clause 9 applies to employees employed prior to the commencement of the Award]. The Club apparently advised the ALHMWU representatives that its advice from RCA was that it was not required to observe the five hour break provision in relation to part time employees taking a paid crib break under cl 10 and, further, that it was not required to show on any roster, the times for taking a paid crib break, either under cl 9 or cl 10. The ALHMWU disagreed and hence these proceedings. In the course of proceedings Mr Barry alleged that the Club was not only not showing crib breaks on a roster but also was not allowing employees to whom par 10.2.7 applies, to take the crib break. Mr Morgan did not understand this to be the case and believed that where there was an entitlement to a crib break, employees were taking the break. 10 The Club Employees (State) Award took effect from 2 July 1999. The Award applies to all persons employed in clubs in the State of New South Wales, excluding the County of Yancowinna, within the jurisdiction of the Club Employees (State) Conciliation Committee. Mr Morgan deposed in his affidavit that the intent of the parties when making the Award was to provide "increased operational flexibility within clubs."