Industrial Relations Commission of New South Wales CITATION: Australian Liquor,Hospitality and Miscellaneous Workers Union,New South Wales Branch v Coffs Ex-Services Club Ltd [2005] NSWIRComm 1078 APPLICANT ALHMU PARTIES: RESPONDENT Coffs Ex-Services Club FILE NUMBER(S): 6892 of 2004 CORAM: Ritchie C Application for Relief from Victimisation-S. 213 member of applicant claimed victimisation by respondent . Loss of remuneration as deprived from working overtime,when available to work-contrary to award. employee had previously worked extra shifts and had been paid ordinary hours and overtime in accordance with the award. CATCHWORDS: Respondent believed their interpretation of the award correct, did not breach award. Respondent did not believe it practical to pay overtime when could engage another employee and pay ordinary hours. Commission found it was open for the respondent to act as they did. Commission found that no victimisation had taken place on the day in question. Commission found lack of evidence to prove that victimisation had taken place post the issue. Industrial Relations Act LEGISLATION CITED: 1996 CASES CITED: Davis v Amalgamated TV Services 81IR 364 HEARING DATES: 04/04/2005 DATE OF JUDGMENT: 05/26/2005 APPLICANT: Mr. C. Acev LEGAL REPRESENTATIVES: RESPONDENT: Mr. G. Arnold DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: RITCHIE C 26 May 2005 Matter No IRC 6892 of 2004 IN THE MATTER OF: Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch ( on behalf of Paul Day) and Coffs Ex-Services Club Ltd Application by Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch on Behalf of its member Paul Day for relief from victimisation pursuant to section 213 of the Industrial Relations Act 1996. DECISION [2005] NSWIRComm 1078 Background. 1 On 25 November 2004 the Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch (the applicant ) filed an Application For Relief from Victimisation-Section 213 of the Industrial Relations Act 1996 (the Act) naming the respondent as Coffs Ex-Services Club (the respondent) located at Coffs Harbour. 2 The application sought an order requiring the respondent to cease victimisation of Paul Day and to refrain from any further victimisation. 3 The application sought a claim for the payment of a sum of money ($147.45) being the loss of remuneration as a consequence of the respondent's action in depriving Mr. Day of the opportunity to work reasonable overtime, as provided by clause 14.1.8 of the Club Employees (State) Award (the award). 4 It claimed that the respondent deprived Mr. Day of the opportunity to work reasonable overtime due to his claiming of a benefit under the award that is, to insist on being paid at the overtime rate and not the ordinary rate of pay. It stated that the issue of working overtime and the right to be paid the correct award remuneration are fundamental award provisions and the victimisation by an employer of an employee for pursuing such fundamental award rights, cannot be allowed to go unaddressed. 5 A compulsory conference was held on 21 December 2004 but no settlement was reached. A hearing of the matter was set for 29 March 2005 but was vacated at the request of the applicant . A hearing was held at Coffs Harbour on 4 April 2005 and the decision was reserved. 6 At the hearing Mr. C. Acev represented the applicant and Mr. G. Arnold of Registered Clubs Association of New South Wales represented the respondent. Applicant's Case. 7 To support their case the applicant provided four witnesses : Mr. P. Day Ms. Janet Southcott Mr. P. Burles Ms. Robyn Dyson 8 Mr. Day is a part time employee of the respondent and has been employed since October 1999. On the morning of 4 November 2004 he was contacted by a supervisor of the respondent, Julie Carr. Mr. Day was rostered to work, as part of his ordinary hours, that day from noon until 4.30pm. The offer was for an extra shift commencing at 5.00pm and to cease at 10.00pm. Mr. Day said he was prepared to work the shift as outlined by Ms. Carr. He was then asked by Ms. Carr if he was prepared to work the shift at the "normal " rate of pay. It was Mr. Day's view that the extra shift should be paid at overtime rates. He therefore advised Ms. Carr that he would not be prepared to work at ordinary time rates of pay in lieu of the overtime rate of pay. Ms. Carr advised that she would get back to him if she could not get anyone else. No further phone call was received by Mr. Day that day. When Mr. Day arrived at work that day he was advised by Ms. Carr that the shift in question had been covered. 9 Mr. Day had not seen the overtime policy as expressed by Mr. Fraser. In the view of Mr. Day the policy only deals with extensions of shifts into overtime as opposed to additional shifts. Mr. Day stated that he believed he was victimised by the respondent because he insisted on being paid at overtime rates for the extra shift as opposed to ordinary hours. In the past Mr. Day had worked additional shifts and if not paid at the overtime rate would object and the overtime rate would be paid. In those occasions he had accepted the additional shifts without being advised by the supervisor at what rate he would be paid at. 10 In cross examination Mr. Day accepted that it was reasonable interpretation of clause 10.2.9 (hours of work) to offer additional shifts to part time employees at ordinary rates utilising this clause and not pay overtime. Mr. Day advised that he had accepted additional shifts in the past, when he had bills to pay and by agreement was paid at the ordinary rate of pay. He was asked by the Commission the following question: Q. Okay. And why are you saying you were victimised. That's my question ? A. I believe my ability to make an income has been taken away because I believe -in the award. I want to work the conditions of the award. 11 Mr. Day's view was that as there was no mutual consent for the variation of roster he should have been paid overtime for the work on offer. 12 Mr. Burles, the local union organiser stated that he had attended a meeting on 17 November 2004 at the respondent's premises to discuss the 4 November 2004 issue. At the meeting Ms. Carr stated that she had contacted three other part time employees to see if they wanted to work, all were available, but when they were asked if they would accept payment at ordinary hours they all said that they wished to be paid at overtime rates. None were offered the extra shift. The meeting covered the views of both parties without settling the dispute. Similar evidence was given by the two local delegates Ms. R. Dyson and Ms. J. Southcott. 13 In his final submission Mr. Acev posed the question, was Mr. Day victimised based on what happened on 4 November 2004 and what happened subsequent to 4 November 2004 ? It was the applicant's submission that the respondent was seeking to engage Mr. Day in a breach of the award under clause 14 -Overtime. When Mr. Day accepted extra shifts, and was paid by agreement ordinary hours, then he was party to a breach of the award. This application is not a review of the award or the club policy. Simply was there a victimisation of Mr. Day arising from the conversation and subsequent disenfranchising by the respondent to Mr. Day ? As there was no request by Ms. Carr to alter by mutual consent the roster of Mr. Day then the extra shift must be paid at the overtime rate. Mr. Day asserted his award rights and was offered something less. Since 4 November 2004, Mr. Day had occasionally received extra shifts, therefore he had been disadvantaged. Case for the Respondent. 14 The respondent brought two witnesses to support their case, they were : Ms. J. Carr Mr. S. Fraser 15 Ms. Carr stated that she called Mr. Day on the morning of 4 November 2004. She asked him was he wanted to do an extra shift that afternoon from 4.00pm until 10.00pm. Mr. Day responded that he was available. He was then asked if he would do the shift on normal rates of pay, which he replied "no". He was then told she would try and cover the shift elsewhere but if she could not she would get back to him. Ms. Carr then called three other part time employees who all were not available to work that night due to personal reasons. Ms. Carr stated that if one of the three had accepted the shift she would have made the same offer that the shift would be paid at ordinary rates. 16 Ms. Carr then inquired at the pay office and asked from a financial point would she be better off to employ a casual at ordinary rates than a part time employee on overtime rates ? In terms of wage costs she was told a casual would be cheaper. She considered that 5.5 hours at overtime rates was not reasonable. She also considered that Mr. Day was already working a 4.5 hour shift and that he was attending a meeting that day as well. Mr. Day may have been entitled to 6.5 hours at overtime rates. She considered that to be unreasonable. 17 In the meeting of 17 November 2004, Ms. Carr commented with respect to the term "unreasonable overtime ", that it was in the context of it being unreasonable to expect the respondent to pay overtime rates in the light of paying 6.5 hours of overtime to cover a 5.5 hour ordinary shift. 18 In cross examination Ms. Carr stated that when requesting an employee to do an additional shift she did not find it necessary to explain that the additional shift was a change in roster. She did not believe that she had breached the award in what she had proposed to Mr. Day. The reason Mr. Day was approached to work the extra shift was because he would have been already working at the club that day, so he could complete his shift have a half hour break and then continue on with the next shift. The reason Ms. Carr finally asked a casual to do the shift was because it would have been financially cheaper and therefore in the best interests of the respondent. Ms. Carr stated that she had never seen the overtime policy and flow chart that was attached to the statement of Mr. Fraser. 19 In answering questions from the Commission Ms. Carr stated that if an employee agreed to do an extra shift at ordinary rates then in her view a mutual agreement to vary their roster had taken place. Ms. Carr would then notate on the day sheet that mutual agreement had taken place. 20 Ms. Carr had rung up Mr. Day post 4 November 2004, to offer him extra shifts but such extra shifts constituted a change of roster due to plenty of notice being available. She had not had reason to ask Mr. Day to work an extra shift at short notice, (in similar circumstances to the morning of 4 November) since that day. 21 Where a casual or part time employee is asked to stay back after the finish of their normal ceasing time to clean up then the employee would be paid overtime. 22 Mr. Fraser gave evidence that the document attached to his statement entitled " Ad Hoc Allocation to Available Shifts" was developed between the beverage staff and his Operations Manager. Mr. Fraser gave evidence that he was in attendance at the 17 November meeting with the local union organisor and that he did not believe that Ms. Carr had breached the award. Mr. Fraser's view was that what Ms. Carr had put to Mr. Day on 4 November, had Mr. Day accepted to be paid at ordinary hours would have been a mutually agreed change of roster. 23 In his final submission Mr. Arnold was at a loss as to how what occurred on 4 November 2004 could constitute a case of victimisation. The applicant had not sought to prosecute a breach of the award, rather a claim of victimisation. It was his view that no evidence had been brought before the Commission to indicate that victimisation had occurred by the employer against the employee in this case. For victimisation to have taken place, a starting point would be a breach of the award. Mr. Arnold went to the award and to consider the words in clause 14.1.8 especially the term "as far as is practicable ". Little or no evidence had been brought by the applicant to allow the Commission to interpret the award. What Ms. Carr did on 4 November was in accordance with the award. There was no intent to victimise or discriminate against Mr. Day. Mr. Day had been treated no different then any other employee. Even if the Commission found that the respondent was wrong in its action, it does still not lead to a situation where the respondent's actions of 4 November 2004 was so offensive as to amount to a situation of victimisation. 24 Mr. Arnold offered that whether the applicant or respondent is right in its interpretation of the award, the actions of the respondent was reasonably open to it. Its action and conduct could not be so harsh as to be considered to have victimised the employee. There was no deliberate breach of the award. 25 In their final submissions both applicant and respondent took the Commission to aspects of Davis v Amalgamated Television Services Pty Limited 81 IR364. Considerations and Decision. 26 I believe it is first appropriate to express the section of the Act that the claim was brought under. 27 Section 210(1)-Freedom From Victimisation of the Act is expressed in the following terms: An employer or industrial organisation must not victimise an employee or prospective employee because the person: (a) is or was a member or an official of an industrial organisation of employees, or (b) does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or (c) refuses to engage in industrial action, or (d) exercises functions conferred under this Act, or (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or (f) informs any person of an alleged breach by an employer of the industrial relations legislation or an industrial instrument, or (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or (h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties), or (i) informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions (as a member of a committee or otherwise ) with respect to workplace consultation conferred under Division 2 of Part 2 of the Occupational Health and Safety Act 2000. Section 210(2) . In any proceedings under section 213 to enforce the provisions of this section, it is presumed that the employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. 28 The clauses in question from the award were : B. Part-time Employees 10.2 HOURS OF WORK 10.2.9 A roster showing starting and ceasing times for the ordinary hours of duty together with meal periods for part time employees shall be posted two weeks in advance in a place accessible to all employees and shall not be changed except: a) by mutual consent; b) when such a change is necessary because of absences or shortages of staff-12 hours notice; c) for any other reason -7 days notice; d) such roster shall be accessible, on request, for inspection by an officer of the Union. and 14. OVERTIME 14.1 FULL-TIME AND PART-TIME EMPLOYEES 14.1.1 Overtime shall mean all time worked- a) in excess of ordinary hours, or b) outside the required margin of hours, or c) outside of rostered hours, and paid on the ordinary hourly rate of:- d) 1 ½ times for the 1st 2 hours of overtime (Monday to Friday ) e) 2 times for all overtime beyond 2 hours of overtime ( Monday to FGriday) f) 2 times for all overtime performed on Saturdays and Sundays and Rostered Days Off g) 2 ½ times for all overtime performed on Public Holidays. and 14.1.8 To ensure that full-time and part-time employees are not deprived of the opportunity to work reasonable overtime an employee, shall as far as is practicable, offer such employees the opportunity to work any overtime that may be required to meet the fluctuations in trade or other special circumstances in preference to engaging casuals to supplement the normal labour force. In such case employees shall work reasonable overtime to meet the circumstances of the employer. 29 It was the applicant's case that Mr. Day had claimed a benefit that he believed in accordance with the award that he was entitled to but was deprived of that benefit by the respondent. Because of the respondent's action Mr. Day believed he had been victimised. His injury was the loss of the money he would have received had he worked overtime on the night of 4 November 2004. 30 The applicant submitted that in accordance with the award, the proposed shift that was to be offered to Mr. Day had to be paid at the overtime rate. 31 It was the evidence of Mr. Day that he had previously been offered and worked extra shifts to his roster. On occasions he had worked those extra shifts and by agreement be paid at ordinary hours. On other occasions he had accepted to work extra shifts but had not had clarified at the time of acceptance what rate he would be paid at. On those occasions he had checked his pay, noted that he had been paid at ordinary rates, gone to his supervisor and had his pay adjusted to be paid at overtime rates. 32 It is my view that what happened to Mr. Day when he was paid at the ordinary hourly rate was in accordance with the award, because he had consented to a roster change. When Mr. Day had to go to his supervisor and have his pay adjusted was also in accordance with the roster because the supervisor in those instances had not clarified what actually was being offered at the time of the offer. That is, was the supervisor seeking to offer ordinary hours,( that is a consent roster change ) or not ? In circumstances where the supervisor is not clear on what is being offered, then the employee has not consented to a shift change. I accept the submission of Mr. Acev that just because an employee has consented to a roster change on one occasion does not mean that he/she consents on a general basis in the future. Each offer is separate and must be treated by both the employee and employer as such. 33 It was the respondent's submission that there had been no breach of the award by Ms. Carr on 4 November last year. On that morning Ms. Carr firstly asked Mr. Day whether he was available to work the extra shift and then expressed the rate of pay that would be paid. It was my understanding that Mr. Acev was critical of Ms. Carr that she did not formally seek "mutual consent" to change Mr. Day's roster and thereby pay ordinary hours. I do not support this part of Mr. Acev's submission. In my view both parties to the telephone conversation knew what was being offered on that morning. 34 Ms. Carr considered that the terminology found in subclause 14.1.8, " as far as it is practical " allowed her to consider the financial ramifications of the offer. She considered the difference in monetary terms between offering the extra shift at overtime rates to a part time employee as compared to a casual employee being paid at the ordinary hourly rate of pay. 35 I accept the submission of Mr. Arnold in that it was open to Ms. Carr to hold such an interpretation of those parts of the award. I do not believe that her interpretation was so manifestly wrong that the result was the victimisation of Mr. Day. In that I have found that it was open to Ms. Carr to interpret the award as she did, I do not believe that the applicant has produced such evidence that I could conclude that Mr. Day had been victimised on 4 November 2004. 36 It was the evidence of Ms. Carr that post 4 November she could not remember being in the same position, as she was on that morning, with respect to having to fill a roster at short notice. Mr. Day has had his roster varied by working extra shifts since 4 November in accordance with the award by being provided with the appropriate period of notice. The limited evidence that came before the Commission as to what has occurred post 4 November 2004 came by way of questions led from the Commission. I do not believe the applicant has provided the Commission with the degree of evidence that would be necessary for this Commission to make a finding that the respondent has victimised Mr. Day post 4 November 2004. 37 As a consequence of my findings as expressed above, I do not believe the applicant has succeeded in their application claiming victimisation by the respondent towards Mr. Day be it on 4 November or after that date. 38 I therefore dismiss the application in matter no IRC 6892 of 2004. D. RITCHIE COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.