Industrial Relations Commission of New South Wales CITATION: Notification under section 130 by Australian Services Union of N.S.W. of a dispute with Bankstown Handicapped Children's Hospital re disciplinary action [2005] NSWIRComm 1228 APPLICANT Australian Services Union PARTIES: RESPONDENT Bankstown Handicapped Children's Hospital FILE NUMBER(S): 168 of 2005 CORAM: Murphy C CATCHWORDS: Hearing to determine Notice of Motion to preserve status quo of member Ms M Imrie's casual hours, pending outcome of arbitration of substantive dispute, with draft dispute orders filed. Interim Orders granted. LEGISLATION CITED: Industrial Relations Act 1996 Sydney Water Corporation and Australian Services Union [2005] NSW IR Comm 305 IRC 2770 of 2005 CASES CITED: Notification by NSW Teachers Federation of Dispute with Department of Eduction and Training re casual teachers 121 IR 177 Notification by NSW Local Government, Clerical, Administrative, Energy Airlines & Utilities Union of Dispute with Sydney City Council [2003] NSW IRC 223 HEARING DATES: 10/05/2005 DATE OF JUDGMENT: 12/22/2005 APPLICANT Ms L Comerford, Australian Services Union LEGAL REPRESENTATIVES: RESPONDENT Mr A Katic, Employers First DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MURPHY C 22nd December, 2005. Matter No IRC 168 of 2005 Notification under section 130 by Australian Services Union of N.S.W. of a dispute with Bankstown Handicapped Children's Hospital re disciplinary action INTERIM DECISION [2005] NSWIRComm 1228 1 This notification seeks the Commission's intervention on behalf of the union's member, Ms Margaret Imrie, employed as a full-time casual with the respondent since 20th December, 2003 and who herself has a hearing disability, but works as a residential care workers/social educator at the Veron Street Home of the respondent. 2 This matter was originally allocated to Commissioner O'Neill, but following the exercise of disqualification under S.173, the file was reallocated to the Commission as currently constituted for the purpose of arbitration of the dispute matter and the subsequent hearing of a Notice of Motion on the 5th October, 2005. The draft dispute orders filed on 14th September, 2005, sought orders in respect of the provision of certain telephone service equipment known as TTY; removal of a record of disciplinary process against Ms Imrie, and the making of her as a permanent full-time employee under the Social and Community Services Employees (State) Award. 3 The Commission was required to conduct an arbitration on 5th October, 2005, with formal evidence from Ms Imrie and Ms Moore, CEO of the respondent. Ms L Comerford appeared for the union, whilst Mr A Katic from Employers First appeared for the respondent. Directions for final submissions in writing were given at the end of evidence on 5th October and the Commission has been assisted by those submissions here. 4 This Interim Decision is in response to the Notice of Motion filed by the Union seeking orders providing that "the employment status and hours of work of Margaret Imrie, an employee of the respondent organisation, remain unchanged pending an examination of this dispute". 5 In effect, the Notice of Motion sought orders that the Bankstown Handicapped Children's Centre be required to maintain the casual employment for Ms Imrie until such time as the dispute proper in this matter can be completed. 6 The original dispute notification referred to in the Notice of Motion, alleged that the particular member of the Australian Services Union, Ms Imrie, had been subject to discrimination, harassment, bullying by both management and a member of staff. 7 Those allegations of the dispute notification were said to have three aspects: The failure of the respondent to accommodate the needs of Ms Imrie, who has a hearing disability, by failing to provide an adequate assistance in communication in the workplace, including, but not limited to the telephone typewriter (TTY). A dispute between Ms Imrie and a co-worker had led to a warning letter being issued and there was an attempt by the ASU to have it retracted The employer failing to comply with the social and community services award 2001 (SACS) by continuing Ms Imrie's employment as a casual since April, 2004. 8 The matter was listed before Commissioner O'Neill on the 4th February and 31st March, 2005 when the Commissioner made a Recommendation in support of the provision of the telephone service equipment, and removal of the warning and for her permanent appointment. 9 It is fair to say that arising from the hearing of the Notice of Motion on 5th October, there was a fundamental dispute as to the facts was as to whether or not Ms Imrie had been previously offered permanent employment, but refused it on the basis of preferring to continue to receive the casual loading. 10 Amongst those facts in dispute was whether or not the employer had on five separate occasions offered permanent work to Ms Imrie and that she had failed to apply. 11 It was the union's case that the particular aspect of the dispute of her permanent appointment was the substantive matter that required arbitration eventually in respect to the dispute notification. 12 Also by way of background the recommendations made at the time by Commissioner O'Neill were not agreed by the respondent. Arising from the failure of the employer to follow the recommendations Commissioner O'Neill, the ASU filed the draft orders in respect of the dispute on the 14th September, 2005 which sought the removal of disciplinary records of Ms Imrie's file and the employer to make the employee a permanent full-time employee under the award, as mentioned earlier. 13 During the proceedings, the union became aware, through its member, of a memorandum to all casual employees from the deputy CEO of the centre dated 19th September, 2005, which led to the applicant member, Ms Imrie to make a written application for a permanent position in accordance with that memorandum. She made that application on the 27th September, 2005. It was the Union's apprehension that this restructure, involving the creation of some thirty (30) permanent positions, and leading to the loss of casual jobs or casual hours, would effectively cut across, if not pre-empt the Commission's arbitrated decision on the dispute notification matter IRC 168/2005 - hence the Notice of Motion to seek status quo. 14 Ms Imrie was employed by the respondent on the 16th December, 2003 and although she has worked thirty-eight hours a week, she has never been classified as permanent and the union is now concerned that the issue of the memorandum of the 19th September, might mean that she may not gain her position and indeed, that her full-time casual employment could be terminated or her hours reduced during that restructure. 15 Of all the differences in the evidence during the hearing of this matter on the 5th October the most important was that the employer disputed that the applicant had made previous five applications for permanency and, as mention above, argued that she had previously refused offers of permanency because she wished to obtain the casual rate. Ms Imrie, for her part, maintained that she had always sought permanent employment, and moreover, the union contended that those refusals constituted a breach of the current award. 16 The union argued in support of the interim orders being sought from the Commission that they should be approved on the basis" (a) the matter had been filed and dealt with in the Commission since the 13th January, 2005 which predates the structure anticipated the employer's memorandum of the 19th September, 2005. (b) O'Neill C made a series of recommendations in March, which the employer failed to adopt one of which was to grant Ms Imrie permanent status. (c) Fundamental facts in dispute between the parties if substantiated in evidence would give rise to a reasonable chance of the Commission granting the orders filed on the 14th September, 2005 on the substantive matters sought. (d) It is reasonable in the circumstances to fear that the full-time casual employment of Ms Imrie is risky and therefore the orders seek that her employment be converted to permanency, on an operative date prior to the restructure matter contemplated by the respondent's memorandum of 19th September inviting applications from the sixty (60) odd casual staff for the thirty (30) odd planned permanent positions . The Evidence 17 The evidence of Ms Margaret Imrie commenced with a history of her association with the respondent, first indicating that she commenced in the predecessor organisation known as the Wesley Mission on the 22n February, 2002 in the position of Social Educator Grade 2 Level 4 of the Social Services Award. In that position she claimed a permanent 70 hour per fortnight position, but in actuality worked full-time, and also performed overtime with the Wesley Mission. A letter of appointment was attached to her statement. 18 In September or October, 2003, Ms Imrie was advised that the Veron Street Centre was to be taken over by the Bankstown Handicapped Children's Centre Association. She took up the offer of an interview with the CEO of the new centre, Ms Cheryl Moore, who gave evidence in these proceedings, and commenced work with Ms Moore's organisation on the basis of the three months probationary period. In respect to her new contract with Mr Moore's organisation, she received only text messages, letting her know that she was working with a 35 hour week and that she would start on the 20th December, 2003. She received all her termination entitlements, from Wesley prior to her commencement with her new employer, the respondent in these proceedings. 19 The applicant throughout her evidence claimed to be confused as to her status with the respondent and after some initial confusion she commenced working regular 38 hour week as per roster and that she was required to work overtime as well. She gave evidence that she imagined that she would cease being casual after three months, and then become permanent. 20 It was much later that staff were told by a memorandum from the respondent, that if they wish to obtain permanent jobs with the organisation, that she should come to the office and sign the relevant papers. 21 The applicant gave evidence that when doing this, she was fobbed off "and not offered any paperwork". 22 At that stage the applicant's job description was as a residential care worker/social educator and she was the key worker for a particular client by the name of David, who had a hearing disability, as well as a number of other physical and mental disabilities. The clients generally a Veron Street, are said to have significant disabilities and to require education and development and support for most aspects of their lives. The applicant gave evidence in having worked for three and a half years with the client David, and she believed the continuity of care for clients is important and she remained as committed to working in Veron Street if at all possible. Ms Imrie also worked with another client, who has slight to moderate intellectual disabilities. There are actually a total of three clients at the Veron Street at the time of the hearing. 23 Attachment C to the applicant's statement was a memorandum received dated June, 2004 from the Director of Clinical Services and she took this memorandum as another opportunity to seek permanency, but received no response to her communications. Ms Imrie further testified that in November, 2004 she was invited by a team leader to again apply for permanent employment at the centre and e-mailed Phillip Petrie, the HR Manager. 24 The applicant also claimed that in April, 2005 she saw an advertisement for permanent positions (Copy of Annexure E of her statement). She claimed to have made application at the time. 25 The applicant gave evidence that the formal warning she had received from her employer was neither valid nor substantiated and she believed that that the overlying issues she being concerned with, had been resolved before the Commission before Commissioner O'Neill. She did not believe that the warnings she received could have a bearing on her record and she continues to be a key worker for clients and David in particular and the organisation has confidence in her skills. The applicant expressed her concern that despite the Commissioner's recommendations when the matter was before Commissioner O'Neill the organisation rejected her claims and no progress has been made and she is now concerned that she has been overlooked once again. Attachment F was an application by Ms Imrie on 27th September, 2005, in response to the latest round of permanent positions offered. 26 Exhibit 2 before the Commission hearing on the 5th October was a memorandum dated the 19th September "Final Notice of Opportunity to Upgrade to Permanent Employee Status". 27 The applicant gave evidence that because of that memorandum and the requirement to turn casual positions into permanent, that, if she is not made permanent, her casual position would disappear, as other applicants would receive preference over her. She again repeated that she believed that she would be made permanent at the end of her probation period of 3 months back in 2004. She claimed that she was the recipient of a discriminatory action since her time at the Centre, but remained committed to the job. 28 As at the date of hearing on the 5th October the applicant has received no communications since the respondent's memorandum inviting applications for permanent positions dated the 19th September, 2005. 29 The applicant verified that she had heard that there were some fifty applicants for thirty permanent positions. 30 The applicant also gave evidence of knowing that the Veron Street Centre had what was called in these proceedings recurrent funding, i.e. as opposed to non-recurrent funding. 31 The union advised the Commission that the issue of the applicant's warnings which were part of the original dispute notification was not relevant to what the union was seeking in the interim orders now sought on the 5th October hearing. 32 Mr Katic, on behalf of the respondent also advised the Commission that the employer also did not regard the matter of the original dispute orders should be particularly relevant to the interim orders now sought by the union affecting the implementation of the memorandum as to permanent positions (Exhibit 2) in the final outcome of that dispute. 33 Under cross-examination from Mr Katic, the applicant maintained that she was confused as to her exact status upon her employment, claiming that she and others were only told that they had 38 hours per week and she was advised of this by mobile phone message. She denied that she had been informed she was a casual employee. She did not notice as to whether she received a 1/12th loading for the purpose of annual leave and further claimed that she did not understand her pay slips. She claimed that it was only a few months after engagement in December, 2003 that three employees from the Wesley Centre talked together and realised that they were actually casuals. She went on to claim that she was very confused about the situation. She reluctantly acknowledged that she was actually classed as a casual employee and that she was now applying for a permanent position. 34 The applicant testified that a June, 2004 memorandum (Attachment C Exhibit 1) advised part-time casual employees, that such employees would miss out on full-time and other work on the rosters and whilst acknowledging that encouraged applications from casuals. 35 As to her application, claimed to have been made by the applicant for permanent position in April, 2005, Ms Imrie testified that she was not told whether or not she was a successful candidate and as to the question as to whether she now remains a casual employee, she gave the response "I suppose". 36 The applicant went on and acknowledged that the 19th September memorandum to staff encouraged her application and was asked as to whether memorandum made it clear that it in no way jeopardised her candidature. She had put in an application dated 27th September, (Attachment F of Exhibit 1). 37 In re-examination by Ms Comerford to a question as to her interpretation of the paragraph contained in the memorandum to the effect that, if you are casual and would like permanent shifts, you need to make application and sign a contract, otherwise you will not be placed on the roster. The applicant answered that it was her impression that she would miss out on a job even as a casual if she was unsuccessful. 38 Ms Comerford read to the applicant the definition of casual under the award "Casual employees shall - mean an employee engaged to perform work on a short term and/or ……….nature". The applicant testified that the definition was not consistent with the nature of her employment. She claimed that it was after many attempts to achieve permanency that she sought the assistance of the Australian Services Union to achieve what had been denied her. 39 The evidence of Ms Moore began by confirming that Ms Imrie was employed with the Bankstown Handicapped Childrens Association from December, 2003 when leaving her employment with the Wesley organisation which preceded the respondent at the Veron Street location and was invited by her to apply for the position with the new employer. Ms Moore agreed to consider four persons for the employment from Wesley, with one pulling out. The applicant was one of the remaining three. 40 She testified that the employees were told that their employment had been confirmed and that if their performance was satisfactory after three months probation, they would be offered permanent employment. 41 Ms Moore gave evidence as to the recurrent funding for the Veron Street location, explaining that, whilst the position is currently funded by the Department of Disability and Aged Services, the year before she received no payments from the Department, which were delayed 12 months. 42 Ms Moore claimed that in April, 2004 each of the three persons coming in from Wesley were offered permanent employment. Two of them took up the offer, but Ms Imrie chose to remain a casual. 43 Ms Imrie's decision to remain casual caused difficulties in respect of funding because while Veron Street attracted recurrent funding the respondent was required to transfer that recurrent funding against another position in other locations so that the Veron Street house was not now recurrently funded. This was reallocated so that Ms Imrie could remain at Veron Street as a casual. Accordingly, Ms Moore employed another person in a permanent position against the recurrent funding for Veron Street, to allow Ms Imrie to stay at that location as a casual as she desired. 44 The features of the recurrent funding were explained to the Commission as being received by Government allocation each quarter. Permanent staff employed against such allocations. The employment of casuals was more related to non-recurrent grants. 45 In stark contrast to the applicant's evidence, Mr Moore maintained that over the last eighteen months that there had been six opportunities for Ms Imrie to apply for permanency. As matters now stood, she would not necessarily obtain full time employment on a permanent basis at Veron Street, because the money from Veron Street had been used to employ a permanent position elsewhere, because there had to be an exchange of that money so that Ms Imrie could remain a casual at Veron Street. That was her choice. 46 Important evidence was repeated by Ms Moore that the long term difficulty with that arrangement was that the non recurrent funding might not be available. There is no guarantee that continued receipt of non recurrent funds. 47 Whilst her organisation could swap the money back in the future to a permanent position at Veron Street, in effect, the applicant could not apply for a permanent position at Veron Street because the money was attached elsewhere, although attached to client David who is at Veron Street. If the non recurrent money dries up, the substantive position at Veron Street, will be adversely affected given that the recurrent monies were swapped to allow Ms Imrie to remain casual. Ms Imrie would have to move to another location to achieve her permanency, when in fact she desired to stay at Veron Street, where only non recurrent money was not guaranteed. 48 Ms Moore went on in her evidence to maintain that Mr Phillip Petrie of her organisation had a meeting with the applicant, and heard from Ms Imrie that she was interested in casual rates and didn't want reduction of her casual rate, which was her decision at the time, prior to the transfer of the money, swap of the money from Veron Street. A position was available for her at Veron Street at the time to take up as a permanent. All that time all the applicant needed to do was to apply, but she chose not to do so. 49 Ms Moore went on in her evidence to advise the Commission that last year her organisation lost somewhere between $400,000 and $450,000 and it is her hope that the organisation will break even this financial year. She gave evidence that an audit had been conducted in the last part of last year undertaken by the Department of Age and Disability Homecare. The audit advised that the Department had been very poor in paying the monies to her organisation and the Department owes some $450,000 in respect of Veron Street whilst the Bankstown Handicapped Children's Association has stabilised. 50 Ms Moore gave evidence that the purpose of the memorandum on the 19th September, Exhibit 2, was to follow through with an undertaking to periodically get as many employees as possible for into permanent jobs, noting that the long term non recurrent funding is less than the recurrent funds. This occurs for instance by interim clients moving up to other placements, replacements or going to other organisations. In that situation, preference needs to be given to permanent employees. 51 Separate evidence was given that casual applicants applying would need to compete for the permanent positions as required by the deed of funding arrangement with the Department, which also means that the positions had to be open to people outside the organisation. 52 It was denied that there was anything in the memorandum which in any way jeopardised Ms Imrie's ability to make application for permanent position and she acknowledged receiving an application from her recently. 53 Later in cross-examination by Ms Comerford, Ms Moore acknowledged that her organisation received in the area of $4 Million total allocation from DADHC and that the drop in this year's funding reflected that some integral clients had gone to other organisations. She repeated that it was a full year before the Department produced the promised funding for Veron Street and that the Director General of the Department, according to Ms Moore, was not impressed that his department had not paid their funds. She denied being able to manage the Department's slowness of funding, repeating that her organisation was some $450,000 short in respect of Veron Street for twelve months. Neither did the respondent receive interest on close to the half million owed for over a year. 54 It was repeated again in cross-examination that permanency had been offered to Ms Imrie at an early stage in 2004, but that she indicated clearly that she was not attracted to a cut in pay from a casual rate. She was emphatic that she had negotiated with all three employees on the same basis. 55 Later in her evidence, the respondent denied fobbing off or refusing to consider the applicant's application, claiming that there was only one previous application made, which had been culled because she had included in the application that "as soon as I get a permanent job I'm going to want to go on paid leave straight away as I am entitled". Ms Moore believed the application was not a proper application and she was subsequently culled. The only other application received from Ms Imrie was the one the day before this hearing on the 5th October. She maintained that the organisation had regularly attempted to offer permanency of employment to casual staff. 56 Ms Moore testified that she did not accept the fact that applying for a job by e-mail was a proper application for the job. In respect of the e-mail application of the 6th May, 2005, Ms Moore testified that she could not say whether or not there was a formal response to the applicant as it would have been done by the Human Resources Manager. She believed that the application of April, 2005 was more about the warning letter that Ms Imrie had got as to her behaviour and it was that which had originally bought the matter to the Commission. 57 In cross-examination Ms Comerford put to Ms Moore aspects going to the proposed structure arising from the offer of permanent employment memorandum of the 19th September and whilst acknowledging that the respondent had not provided to the union advice of intention to restructure. Ms Moore claimed that the offer of permanency was merely consistent with what the union had been pushing for some time. Ms Moore testified that in respect of the union's question as to whether the employer intended to mitigate the adverse effects upon the casual employees unable to obtain permanency out of the latest offer of permanency that those unsuccessful would probably be on the casual positions in DOCS funded positions but she did not really know who the effected employees would be until the recruitment was finalised, and which would include outside people. 58 In re-examination, Ms Moore maintained that she was observing her obligations under the Organisational Change, Redundancy provisions under the award in respect to the 220 odd staff employed by her organisation. She reiterated that her funding arrangements with the Department required her to advertise in the manner that allowed outside advertisements and with full competition and she also pointed out that she had to cull positions against the criteria set for the jobs. 59 She acknowledged under further cross-examination arising from questions from the Commission that casual employees not successful in obtaining permanent positions would not necessarily have the same amount of hours as casuals and she acknowledged that permanent staff who have been recently employed, would compete with casual staff for specific locations, although it did not include Veron Street and did include two DOCS sites. 60 The process of filling the permanent positions had begun with interviews and culling, and until that was completed, then no one would be displaced and, whilst she was employing Ms Imrie at the moment against other non recurrent funds, she could not guarantee the Veron Street position for Ms Imrie, because somebody else was employed against that position on a permanent basis. She acknowledged that the Veron Street position was in effect overstaffed. More specifically, the Veron Street position was overstaffed by about six or seven hours a week and eventually, those hours would come out of that house because Ms Moore had claimed not to be able to sustain such overstaffing. 61 In re-examination, Ms Moore testified that other staff were concerned that by the union's application to the Commission, which is the subject of these proceedings, that Ms Imrie might receive preferential treatment because of her application to the Commission. CONSIDERATION 62 The Commission has had the opportunity not only to review the transcript of evidence in this matter taken on the 5th October, 2005, but also the comprehensive closing and final submissions of the advocates Ms Comerford for the union on behalf of Ms Imrie and Mr Katic of Employers First on behalf of the respondent. 63 The Commission has noted that the applicant has remained as a full-time casual working 38 hours per week since her engagement from December, 2003. 64 The union relied upon the applicant's evidence of having several times made application for permanency, but having been provided with no feedback, at least in respect of most of those applications. That was disputed by Ms Moore's testimony. 65 The respondent, through the evidence of Ms Moore, relied upon a stated preference by the applicant, apparently said to have been uttered at a meeting with Ms Moore and another officer of the respondent, that she preferred to remain as a casual so that she might continue to receive her casual loading. That meeting was said to have taken place around April, 2004. Ms Moore suggested that there were some half dozen occasions when the applicant could have applied. 66 The most important point made by the union in respect of that crucial aspect of the respondent's case was to point out how unlikely it would be for Ms Imrie, without the assistance of an interpreter at the alleged April, 2004 meeting, to have conveyed such a wish. Whilst she is competent at lip reading, the presence of two officers would make it unlikely that such a meeting took place without an interpreter. 67 Attachment D to Exhibit 1 was an e-mail request/enquiry dated 18th December, 2004 as to the possibility of Ms Imrie applying for permanency, which the Commission notes is only some 7 to 8 months after the alleged April, 2004 rejection. 68 Ms Comerford made the viable point that the respondent's final submissions have in effect exaggerated the implications of what the union seeks the Commission to do in this Notice of Motion. The longer term implications of the hearing of the more substantive matter of the arbitration of the dispute notification and draft orders therein is another matter. 69 The Notice of Motion is said to be justified on the basis, not only of Ms Imrie's evidence of being ignored or fobbed off in respect of her previous request for permanency and the award provision which contemplates permanency beyond thirteen weeks employment, but that since the lodgement of the dispute notification earlier this year, the respondent on the 19th September, 2005 has released a memorandum to staff inviting them to apply for permanency, which further jeopardises the applicant's ability to achieve her goal, in view of the increased competition for permanency, compared with when the dispute was lodged. The fact that the union apprehends that this is deliberately timed to thwart the applicant's ambitions and that such is related to a previous attempt earlier this year to discipline the applicant, along with her requests for particular telephone typewriter equipment known as TTY to be made available to assist in interpretation with clients, is also raised in support of the Commission's intervention. Those latter aspects, whilst not irrelevant, are found by me to be secondary to more important issues going to my consideration of this matter. 70 The respondent maintained, that should the Commission grant the interim orders contained in the Notice of Motion that it would be an interference with the planned restructure to pursue the issue of permanency in line with its requirements under the Department of Aging and Home Care (DAHC) funding arrangements. The employer also maintains that the award provision does not impose an obligation to provide permanency to casual employees in Ms Imrie's situation. The respondent further submits that the Commission in granting the orders would in effect provide some preference to Ms Imrie over and above the other fifty odd applicants, which might also include outside candidates. It is also maintained that the organisation has no vacancy at the Veron Street centre for a permanent position and that the applicant's requirements and conditions she places upon a permanent position make it inappropriate that the Commission should facilitate her appointment by granting the interim orders. 71 Most of these arguments overlook the fact that the union's Notice of Motion merely seeks to maintain status quo, pending the finalisation of the dispute notification. Ms Comerford made this point, along with suggesting a compromise, along the lines that the applicant could be granted a guarantee of her current number of hours. The Commission was never disposed to the adoption of a compromise, seeing insufficient difference between it and what was sought by the Notice of Motion. The Commission agrees however, that the respondent's stated opposition, for the above reasons, is in fact an overstatement at what the effect would be of the Commission granting the interim orders in the Notice of Motion. 72 Mr Katic, in his final submissions, suggested that the interim order sought falls outside the scope of the Commission's powers as understood by the application and operation of Chapter 3 - Industrial Disputes of the NSW Act. Such orders would not be appropriate pursuant to section 137(1) or Section 136. 73 He also claimed that the notion of conversion from casual to permanent employment relied upon by the ASU simply does not exist. Clause 7-1, dealing with casual employees of the Social and Community Services Employees ('State) Award does not provide for "conversion" as relied upon by Ms Comerford. He quoted from the Full Bench in the making of the award reported at 113 IR 119: "..We do consider conversely that those employees who have in the past been employed in and have an expectation of continuing regular long term employment are entitled to a range of employment related benefits which accrue to permanent employees. We conclude that a useful application of the words 'short term irregular' would be continuous work of not more than 13 weeks duration and not occurring at predictable, expected and equal intervals. Beyond that, we consider there is a compelling case for permanent employment." 74 Mr Katic also submitted that the Organisational Change and Redundancy provisions relied upon by the union did not apply to casual employees and quoted from Clause 49.1 of the award accordingly. 75 The respondent also raised issues of merit in the draft dispute orders sought, which he claimed positively discriminated in favour of Ms Imrie, and the disadvantage other casual applying by compromising the objectivity and impartiality of the selection process. The draft dispute orders would require the centre to unilaterally vary the conditions of another employee's contract in that Group Home. 76 The respondent also submitted that there were no threats of dismissal requiring orders of the kind in Section 137(1((2) of the Act. 77 Mr Katic urged the Commission to exercise caution to avoid orders akin to direct intervention into the restructure to give a short term advantage to one employee over other casuals. 78 Of some importance was Mr Katic's concerns that the interim orders are of an injunctive nature, and as such are not available to the Commission to make. He quoted from the decision of her Honour Justice Schmidt in Notification under Section 130 by the New South Wales Teachers Federation of a dispute with the Department of Eduction and Training re casual teachers 121 IR 177 @ 186. That decision has been taken into account by me in this overall assessment, along with other cases in respect to Interim Orders, including the other major case referred to by Mr Katic by his Honour Mr Justice Boland in Notification under Section 130 by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union of a dispute with Sydney City Council and others [2003] NSW IRC 223. 79 In this area the Commission has also had the benefit of the recent decision of the Full Bench of this Commission in Sydney Water Corporation and Australian Services Union [2005] NSW IRC 305 Matter No. IRC 2770 of 2005, given on 15th September, 2005. The observations of the Bench made from paragraph 36 of that decision are particularly helpful in considering the case at hand, and assessing the difficulties foreshadowed in Mr Katic's submissions, where it was said: "While we agree that the tests formulated in Castlemaine Tooheys as adopted in hill (on the submissions of both parties) offer some useful guidance for the exercise of power to grant interim orders, it would be wrong to apply, strictly and inflexibly, what are essentially private law and equity principles to the full range of industrial disputes under Chapter 3 of the Act, many of which fall into the realm of a jurisprudence not only more closely aligned to public law but having its own particular features. Industrial disputes may cover a spectrum from what is essentially an isolated, ordinary unfair dismissal case, to an industrial dispute in which dismissals or threatened dismissals are subsidiary, and then to a full-blown collective dispute involving stoppages, lock-outs, and mass dismissals. Across most of the spectrum, there will be factors at play which cannot be accommodated by the Hill tests, and the further the situation approaches the collective dispute at the end of the relevant spectrum, the more strained the application will become. The Hill tests will usually be applicable to applications brought under s 89(7) of the Act. The Commission, in using its powers under the Act to conciliate, arbitrate and generally facilitate the resolution of industrial disputes, is engaged in an undertaking considerably removed from the adjudication of individual civil grievances. In furthering the objects of the Act (including the promotion of efficiency and productivity in the economy of the State and providing for the resolution of industrial disputes in a prompt and fair manner with the minimum of legal technicality), it is vital that the Commission recognise the broad discretion granted by the Act to fashion appropriate relief by reference to the merits of the industrial dispute itself and the steps necessary to resolve it. This will involve a variety of considerations, some of which may include those deriving from private litigation, but more usually will include the public interest in managing the industrial dispute in a fair and just manner with minimum disruption and disputation. The Castlemaine Tooheys tests must be understood in the context of litigation between two individual parties to a private dispute, albeit with public law elements, seeking a judicial resolution. In such a context, strict evaluation of the first test in terms of the evidentiary burdens of court proceedings assists the overall integrity of the proceedings by placing a check upon dubious or frivolous claims, claims which are unlikely to succeed and claims which should be concluded at an early stage. But technical evidentiary questions such as whether or not "there is a prima facie case" do not sit as neatly in the context of the arbitration of an industrial dispute by the Commission, charged as it is by the Act with the promotion of various public policies, including those referred to above. 80 The Commission after consideration of the tests to be applied from those authorities accordingly sees no statutory impediment at least in the consideration of the Interim Orders sought by the Notice of Motion and has also had careful regard not only to the matters exposed by the evidence, but also all of those exposed in the helpful comprehensive written submissions referred to earlier. 81 In therefore turning to the merits of granting the Interim Order, as already observed in part at least, a lot of Mr Katic's concerns for the prospect of this Commission interfering in a restructure and providing positive discrimination over other employees, belong more with the final consideration of the draft despite orders which include the granting of permanent status to Ms Imrie. There is, of course, an ingredient of those things within the granting of the Interim Orders sought, but that might be temporary and essentially short lived, if the Commission takes a different line in the determination of the dispute matter by refusing the draft orders, inclusive of the permanency provision. 82 The Commission had before it a necessarily incomplete picture of all the evidence, which is often the feature contemplated in respect of Interim Orders as observed by the Full Bench, above reported and quoted. 83 In this case, the Commission was dissatisfied with the standard of the evidence in respect to Ms Imrie's prior efforts to obtain permanency and with the evidence of the respondent that she had specifically requested to remain casual. A more thorough treatment of the issues with greater supporting historical documentation, would have been more convincing. On one hand, the applicant gave evidence of her attempts, which included an e-mail attached to her statement dated 18th December, 2004, which evidenced a desire in start contrast to Ms Moore's contentions under oath of the applicant's expressed desire in April/May of the same year to continue as casual, so as to continue to get the loading. Ms Moore's evidence of the applicant having passed up half a dozen opportunities for permanency was too remote to be accepted on its face. 84 That evidence also indicates that the applicant could have been contacted after that date, otherwise it is difficult to believe that a half dozen or so opportunities presented themselves between April/May, 2004 and Ms Imrie's e-mail of December, that year, asking about opportunities. 85 Overall, the Commission has not been able to accept that the applicant was likely to have been as adamant as claimed by Ms Moore in April,2004. Given the communication difficulties with Ms Imrie, although able to lip read as earlier stated, it is more likely that some kind of misunderstanding caused Ms Moore to believe that the applicant wanted to remain casual. 86 Given that the recurrent funding effectively disappeared over to another location, leaving Ms Imrie's casual position vulnerable to the whims of non-recurrent funding, there would be little incentive for the respondent to encourage her to be permanent. The encouragement by her team leader apparently went nowhere. The award provision for the facilitation of permanency is surely relevant to that point. 87 The issue of the difficulties of funding by non-recurrent or recurrent funding was also an incomplete section of the evidence, which the Commission believed received only a broad brush treatment in the comparatively short time allowed for the Interim hearing on 5th October, 2005. That is again a matter capable of more fulsome treatment in the final determination of the dispute notification proper. At this stage, the Commission is not convinced that a rejuggling of the funding over some 200 odd positions and over $4 Million funding is not possible, but this is open to be properly canvassed at the substantive hearing. 88 Whilst I agree that the recommendations given by Commissioner O'Neill in March this year have little relevance to my consideration, they do point up some preliminary concerns held at least at that time. My consideration of the matter, whilst also incomplete to an extent, has however enlivened by a concern by the Commission that the respondent should be restrained at this stage from affecting Ms Imrie's casual hours, pending further in-depth assessment. That belief is supported by the Award provision which is obviously intended to facilitate permanency by nominating a time over which casuals should be facilitated to achieve permanency , at least if practicable. 89 There is a distinct risk of Ms Imrie being passed over, perhaps by much more recently appointed casuals, and in circumstances where the swapping of funding arrangements is said by the employer to complicate her being offered permanency at the Veron Street home, where she is obviously of most use. The Commission's intervention to provide some preservation of the situation on at least a temporary basis is justified where greater caution should prevail. 90 Again, the Commission might not eventually see fit to grant the draft dispute orders as sought with the Notification (filed 14th September, 2005), and the respondent's concerns can be revisited. The dispute notification in Matter No. IRC 168 of 2005 will be brought on as soon as possible and parties notified. I N T E R I M O R D E R S 91 The employment status and hours of work of Margaret Imrie, an employee of the respondent organisation, in Matter No. IRC 168 of 2005, are to remain unchanged pending the determination of the dispute. J P Murphy 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.