Industrial Relations Commission of New South Wales CITATION: PSA & the Zoo [2007] NSWIRComm 1080 APPLICANT: PARTIES: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales. RESPONDENT Zoological Parks Board of New South Wales FILE NUMBER(S): 543 of 2007 CORAM: Ritchie C Dispute notification Employees had been working a 19/20 cycle for many years Employer varied roster and deleted the flexi day. CATCHWORDS: Employee argued that flexi day became term of the employee's contract and also implied through custom and practice. Employer argued that the 19/20 roster never expressed as part of employee's contract of employment and was not a custom and practice. Commission found that all employees in the particular department had worked the 19/20 cycle and that a custom and practice had existed. Ordered for the employer to return the named employees to a roster that provided a 19/20 cycle. LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Federated Ironworkers Association of Australia, New South Wales Division and Australian Fertilizers Ltd re overtime. (1977A.R. 17). Halesbury's Laws of England, 3rd ed., vol X1. HEARING DATES: 25/09/07 DATE OF JUDGMENT: 23 October 2007 Applicant Mr M Gibian of Counsel Solicitor W.G.McNally Jones Staff LEGAL REPRESENTATIVES: Respondent Mr M. J Davis of Public Employment Office DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: RITCHIE C 23 October 2007 Matter No IRC 543 of 2007 Notification under section 130 by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales of a dispute with Zoological parks Board of NSW re flexible work practices DECISION [2007] NSWIRComm 1080 Background. 1 On 14 May 2007 the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (the PSA) notified a dispute under section 130 of the Industrial relations Act 1996 (the Act) with the Zoological Parks Board of NSW (the Zoo) in the following terms: The question, dispute or difficulty concerns the following industrial matters: 1. It has been the practice by our members at Taronga Zoo to work additional hours on the basis of being given an additional day off. 2. Management have unilaterally decided to cease this practice without any consultation. 3. The ability to have additional days off has been in place for in excess of 15 years and is consistent with the Government's policy on flexible work practices. 4. A number of meetings have taken place between the PSA and the Zoological Parks Board of New South Wales without a resolution being reached. 2 The award which applied to the employees is the Zoological Parks Board of New South Wales Employees (State) Award (the Award). 3 A compulsory conference before Macdonald C took place on 21 May 2007 with a report back on 6 June 2007 when a timetable for the filing and serving of evidentiary material was provided to the parties. This timetable was later varied by consent. A Certificate of Attempted Conciliation was raised by the Commissioner. 4 The file was subsequently reallocated to the Commission as presently constituted. 5 Both parties filed an Outline of Submissions with the Union filing Draft Orders (Ex A). 6 The Zoo was represented by Mr J. Davis of the Public Employment Office with the PSA being represented by Mr. M. Gibian of Counsel. Case for the PSA. 7 The PSA filed statements from Ms Joanne Soden, Mr Sean Richardson and Mr John Doyle and all were required for cross-examination. 8 It was the evidence of Ms Soden that she had been a long term employee of the Zoo commencing in December 1985 as a casual becoming permanent in about October 1987. In approximately December 1995 she was transferred and became a Purchasing/ Stores Assistant. Later her job title became Purchasing Stores Officer. Attached to her statement were a number of annexures including her application for the position of Purchasing/Stores Assistant and a one page hand written document. She stated that she found these documents inside her personal file held by the Zoo. At the bottom of the hand written document was a list : Explain hours 7.30-4.15 flex days 1 per m holidays 4 w sickleave 15 ? 9 During her permanent employment she had worked an eight hour day, receiving payment for 7.6 hrs and accruing time towards a paid day off per month roster cycle. She would apply for a flexi day by completing a form and having it approved by her supervisor. She stated that there was a requirement to be flexible in applying for this day. She also stated that she could utilise overtime worked as paid time off. 10 Until the flexi day arrangement was removed in March 2007, Ms Soden had been receiving a flexi day for nearly 20 years. 11 On 26 February 2007, Ms Soden stated that she received an email from a Ms Sue Keen, Finance Manager stating that the Zoo no longer had a policy of paying employees for RDO's on the basis of their having worked an extra 24 minutes per day. She could not remember any meeting concerning the removal of the flexi day prior to the receiving of the email from Ms Keen. 12 She said that she had attended a number of meetings between management, fellow department employees, human resources and her Union without resolving the dispute of the unilateral decision of the Zoo to vary her employment conditions which she did not consent to. She was still unaware of why the flexi day had been removed. 13 She stated that she utilised that flexi day to carry out private business and to visit her family in Cessnock and Bowral. 14 In cross examination she stated that she could not remember the contents of her interview for the position of Purchasing/Stores assistant. She did not remember if comments concerning hours of work, sick leave, flexi days or annual leave were made during the interview as the interview took place some 12 years ago. She was only going by the hand written note found in her file. She did remember that Mr Chris Latham took part in the interview. 15 To her knowledge other employees of the Zoo in retail, IT and quarantine still work a 19/20 day cycle. 16 Mr Sean Andrew Richardson stated that he commenced employment with the Zoo as a casual in approximately September 1993 as a Food Preparation Officer. This became fulltime in December 1994. He continued in this role until August 2005 when he resigned before returning to the same role in March 2006.There were no changes to his employment conditions upon his return. During his first period of employment with the Zoo Mr Richardson was receiving one flexi day off per month. He worked from 7.30am to 4.15 pm Monday to Friday accruing 24 minutes per day towards a 19 day 20 day cycle. In 2000 his roster was varied so one day per week he worked from 8.30am to 5.15 pm. Everyone in his Department worked the same 19/20 day cycle. He stated that he took his flexi day after discussions with his direct manager taking into consideration the workload, how up to date he was in his job and the needs of fellow employees. He also took time off as a consequence of working overtime. 17 Mr Richardson stated that he, Ms Soden and the other food preparation officer Mr Gleichman rotated between the food preparation officer's job, the stores officer's job and the purchasing officer's job as required. 18 On or about 26 February 2007 without any prior notice or consultation he received an email from Ms Sue Keen, Finance Manager who stated that the Zoo no longer had a policy of paying employees for RDO's. 19 He stated that he did not accept this variation to his conditions of his employment with the Zoo. The effect of the loss of the flexi day has had a significant impact on his family as he used the flexi day to attend to family affairs and school activities. 20 He said he attended a meeting in March 2007 with fellow employees, Mr John Doyle (PSA representative), Ian Latham, Heather Turner and Sue Keen. Management stated that having a 19/20 day cycle was a hindrance to productivity. Mr Richardson asked during the meeting of examples where there had been a drop in productivity due an absence of an employee but he did not receive a reply. A new roster was tabled which showed the deletion of the flexi day and the inclusion of long and short days being worked. 21 The roster that they now currently work is a two week roster with long and short days where each week adds up to 38 hours. There is no averaging between weeks. Mr Richardson stated that certain days require more work than others due to specific deadlines requiring to be met, like the receiving of fresh fruit and vegetables which have to be distributed. 22 Mr John Doyle stated that he had worked for the PSA as an Industrial Officer from 9 May 2005 until he retired on 25 July 2007. During that period he had particular responsibilities, one of which included the Zoo. As a consequence of members of the PSA receiving an email on 26 February 2007, he held a meeting at the Zoo with management on 1 May 2007 to discuss the reason for the removal of the flexi day system of rosters. It was his view that there had not been any consultation with his members prior to the change. 23 He stated that 15 to 20 minutes into the meeting he was no clearer as to why the change had taken place. He therefore asked the Purchasing Department's Manager Mr Latham as to whether there had been any problems with the system of employees working a forty hour week and accumulating a day off per week. The response was in the negative. He then asked whether the system had always worked well, to which Mr Latham responded "Yes". He had asked what they meant by efficiencies and was advised that the place would just work better. 24 He stated that neither the PSA or staff were consulted regarding the change to the roster. In his view the Zoo had wrongly interpreted the Award. 25 It was the submission of Mr Gibian for the PSA that the entitlement to work a pattern of hours so as to enable them to take one flexi day per month constituted a contractual entitlement and the Zoo was not entitled to remove that entitlement without consent or agreement of the staff involved. The PSA sought for the Commission to make an award or order entrenching the long-standing practice. 26 Their submission was that the two witnesses for the PSA indicated that they accepted employment on the basis that a flexi day was a condition of their employment. The oral exchange between the parties formed part of their conditions of employment as the written letter of offer of employment could not of itself be a complete record of the terms of employment. 27 In the alternative it was argued that a term may be implied into a contract of employment by reason of custom and practice at the work place. This practice of employees working a roster that provides a flexi day every four weeks had existed for very many years. Ms Soden had been working such a roster for twenty years, including the last ten years in the Purchasing Department. Leave Forms provided by the Zoo made provision for flexi days. The computerised payroll made provision for the flexi day to be provided to the employee. This evidence gave rise to an implied term by reason of custom and practice in the workplace. It was not open for the Zoo to unilaterally change the terms of a contract of employment without agreement by the individual employee. 28 Nothing in the Award conflicted with or was inconsistent with the operation of the flexi day arrangement. The Hours clause in the Award does not make any provision for the manner in which ordinary hours are to be rostered within the 152 hour month. The clause allows for the changing of starting and finishing times but does not allow for the changing of days. 29 The longstanding practice should be considered to provide a fair and reasonable condition and should not be discontinued at least for existing employees. There was no evidence to the contrary that the Zoo had suffered long term difficulty in providing the flexi day to this group of people. There had been no evidence brought by the Zoo to the Commission justifying this change in roster. Case for the Zoo 30 Ms Heather Turner was the only witness for the Zoo. 31 Ms Turner stated that she is employed by the Zoo in the position of Manager Employee and Organisation Development. She said that the Purchasing Department is located at Taronga and has five employees in the department. 32 She confirmed that there employment is regulated by the Zoological Parks Board of NSW Employees (State) Award (the Award). Attached to her statement were extracts from the Award covering the Hours clause over a number of years. Since 1992 the Award has allowed for a 38 hour week. The Award does not prescribe how the average 38 hours is to be worked. She also agreed that the clause did not set a minimum or maximum days that could be worked in the week. 33 It was her understanding that on the morning of 26 February 2007 the Manager of the Purchasing Department verbally advised his staff that rosters would change so as 152 hours would be worked in 20 x 7.6 hour days. Prior to that date she had not been made aware of any rostering problems or of any changes that were about to take place. She also understood that this verbal advice was confirmed by an email from Ms Keen later in the morning. 34 The change in the deletion of the flexi day commenced on 8 March 2007. She understood that the change in roster was to provide a full compliment of staff 5 days a week, each week. The appropriate seven days notice for the change of starting and finishing times was given. 35 She stated that she attended a meeting on 4 April 2007 with John Doyle and Michael Shields. They wanted the flexi day to be reinstated. Discussion was also had on the interpretation of the Hours clause in the Award. There was an open invitation for the PSA to provide alternative rosters that met the needs of the business. Later in cross examination it was made clear by Ms Turner that a roster that incorporated a flexi day would not be acceptable to the Zoo. 36 The meeting on 1 May 2007 provided the rationale for the change was explained. The operational needs of the business were not being met by working an 8 hour day. As a consequence of a general review of rosters it was found that there were clear peak and trough days in food preparation and rosters should be aligned to the actual work patterns. 37 She stated that employees are employed in accordance with the Award and that whilst employees are advised of their working patterns it is not a condition of their employment. No mention of a flexiday is included in the Letters of Offer or Position Descriptions of Ms Soden or Mr Richardson. 38 She did state that it would be normal in the interview stage to advise future employees what their working hours would be. 39 In comparison to other employees (under a different award) of the Zoo, some employees have the flexi day entitlement prescribed in their award. 40 It was her interpretation that the Hours Clause in the Award did no limit the days on which an employee worked being altered or the starting and finishing times on such days. 41 She also stated that it was the Zoo's practice that where it offered an employee something that is not in the award to specifically record it. 42 In final submissions Mr Davis stated that there was no evidence before the Commission that their had been an expressed offer and an acceptance with the respect to providing a flexi day as part of the contract of employment for the two employees who gave evidence. Whilst no evidence was brought by the Zoo stating that the other two employees (Ms Le and Mr Gleichman) had been treated any differently to Ms Soden or Mr Richardson, there was no evidence in relation to the formation of their contract of employment. 43 There was no evidence that the hand written document attached to Ms Soden's statement was connected to her application and subsequent interview for the Purchasing Officer's position. Ms Soden could not remember what questions she was asked in the interview back in 1995. There was no evidence that Mr Richardson commenced with the Zoo on his second employment was as part of his contract of employment offered a flexi day. 44 It was Mr Davis's submission that the two witnesses are currently being rostered in accordance with the Award because they are working a two week rotating roster, who's hours each week add up to 38, therefore the weekly hours are an average of 38 hours per week. 45 Mr Davis stated that the reason for change as expressed by Ms Turner was for better utilisation of the staff. Management wanted staff on duty in this department each day Monday to Friday. 46 Mr Davis also stated that by changing starting and finishing times of an employee you are changing their roster and if the roster for example has ordinary hours that go beyond midnight then you are changing the days. 47 He stated that with respect to the issue of custom and practice, the Commission has to take into account the letters of offer of employment, the position description and the changes to the Award. The latter letters state the award the employees are employed under which in effect imports the rights of the parties into the contract. Consideration and Decision. 48 The award in question is the Zoological Parks Board of New South Wales Employees' (State) Award. 49 This award was varied from a 40 hour week to a 38 hour week from 2 October 1992. Clause 8 Hours of Work was expressed in the following terms: The ordinary hours of work shall be an average of thirty eight per week over a 152 hour month, Monday to Sunday inclusive, between the hours of 6.00am and 6.00pm. Rosters shall, wherever possible, be agreed between the employer and employee. There shall be a specified lunch break agreed between the employer and employee of not less than half an hour and not more than one hour. One week's notice shall be given to an employee of any changes of starting and finishing times and lunch breaks, except in the case of emergency. 50 In 1996 the Hours clause in the Award was varied to incorporate shift work. This became operative on 18 June 1996. The clause has not varied since. 51 Clause 7 Hours of Work is expressed in the following terms : 7.1 The ordinary hours of work shall be an average of 38 per week over a 152 hour month, Monday to Sunday inclusive. Rosters shall, wherever possible, be agreed between the employer and employee. There shall be a specified meal break agreed between the employer and employee of not less than half an hour and not more than one hour. One week's notice shall be given to an employee of any changes of starting and finishing times and lunch breaks, except in the case of emergency. 7.2 Hours of work shall be either day shift or afternoon shift : (a) Day shift hours shall be worked between the hours of 6.00am and 6.00pm. (b) Afternoon shift is any shift that finishes after 6.00pm and before midnight. 7.3 A 15 percent allowance shall be paid for work performed on an afternoon shift. This allowance is not cumulative upon the allowances paid for work performed on Saturdays, Sundays and Public Holidays. 52 As confirmed by Ms Turner during her evidence, there exists neither a minimum nor maximum number of days to be worked over a week. 53 There also does not exist a minimum or maximum number of ordinary hours that can be worked on each day as long as during the day shift the hours fall between 6.00am and 6.00pm. The one requirement is that an average of 38 hours each week shall occur over the 152 hour month. 54 Notwithstanding that high degree of flexibility in rostering afforded by the Award that has been in existence (for day work) since 1992, it was only in February 2007,that as a consequence of a review of rosters, that employee's rosters in the Purchasing Department were varied to delete the employees flexi day. Evidence from the two employees was that they were advised of the change via an email. 55 I note the comments made by Watson J. in Federated Ironworkers' Association of Australia, New South Wales Division and Australian Fertilizers Ltd Re Overtime(1977 A.R.17 at21) concerning the removal of taxi transport home after the working of overtime: This has been the practice for very many years. According to some statements it has existed for well over 20 years at least, and has applied to planned as well as unplanned overtime. That this has been so is not disputed by the company although the company claims a discontinuance occurred relying on the spelling out of changed practices in 1969. It was put that this has been accepted by delegates including those in the maintenance section. Whether or not this was so was not established . In any event had the company intended to disturb so long a standing practice, the desirable course in my view, would have been to have concluded the matter more formally and if necessary, with the unions involved. I find the lack of discussion by the Zoo concerning this important change to the employees life style completely unacceptable. 56 It was noted by both sides that not every day's work loads were the same and that sometimes required employees to work back on overtime, which they then took as time off. It was the evidence of Ms Turner that it was the preference of the Zoo to have all employees of this numerically small department at work five days a week. Offers were made by the Zoo to the PSA to come forward with alternative rosters but it is my conclusion based on Ms Turner's evidence that any roster that included a flexiday would not be acceptable. There was very little evidence from Ms Turner as to what problems the Zoo had experienced as a consequence of providing a flexi day roster over such a considerable long period. Persons who may have been in a better position to give practical reasons to the Commission for the required change such as the department's manager Mr Latham were not called by the Zoo to give evidence. Both Ms Soden and Mr Richardson gave clear evidence on the procedure for requesting a flexiday off. Mr Doyle also stated that he had asked Mr Latham if there had been any problems with the flexi day system and was advised "no" and if it had been working well and was advised "yes". 57 As it was explained to the Commission employees now work a two week rotating roster with some long days (more than 8 hours ) and one half day each week. In my view this current roster is technically in breach of the Hours clause in the Award, because each week of the two week roster has 38 hours rostered. No averaging is therefore required to take place. The Clause states that averaging shall take place. I therefore do not accept the submission of Mr Davis with regard to this particular issue. 58 The two witnesses had been receiving a flexi day for a considerable period of time. Ms Soden for at least 10 years plus and Mr Richardson during both his contracts of employment, the first from 1994 up to August 2005 and the second since March 2006. 59 Nothing was stated by either party in this matter that would lead the Commission to conclude that the other two employees in this particular department, Ms Le and Mr Gleichman were treated any differently since they commenced employment with the Zoo with respect to receiving a flexi day. 60 It is my finding based on the balance of probability that the hand written document attached to the statement of Ms Soden formed part of the interview that she had for the position of Purchasing/Stores assistant. As expressed earlier in this Decision included was the line: flex days 1 per m It is my finding based on the balance of probability that Ms Soden was advised amongst other matters that she would be working a roster in this new position which included a flexi day. This therefore became in my finding a part of her contract of employment. Something the Zoo then maintained for over a decade. 61 In considering the history of the Award, it is clear in my view that the commencement of the 38 hour working week (2 October 1992) also saw the introduction for the requirement to average the 38 hours over the 152 hour month. Clause 9 Overtime states in part: 9.1 Where an employee is directed to work in excess of an average of 38 hours per week over a 152 hour month, Monday to Sunday inclusive, the employee may elect for compensation purposes between monetary payment or time in lieu. Clause 10 Allocated Days Off, states in part : 10.1 Where possible, allocated days off shall be scheduled by mutual agreement between employees and the employer. Allocated days off may be accumulated up to a maximum of ten days. Accumulation of allocated days off (ADOs) in excess of ten days shall require the approval of the employer. The Award was clearly written to allow for the flexi day roster to be introduced. As noted earlier in this Decision evidence from Ms Soden and Mr Richardson described how they would liaise with their supervisor Mr Latham to have their flexiday allocated. With the introduction of the averaging of the 38 hour week came the roster that was developed by the introduction of the working of the eight hour day, the payment of 7.6 hours and the accrual of 0.4 hours per day towards the payment of the flexi day. The Award had been varied to allow for the flexiday to take place. The administration of the taking of the flexi day was supported by the leave forms and the recording on annual planners making provision for the flexi day. 62 The evidence from both Ms Soden and Mr Richardson was that they had enjoyed the benefit of a flexi day from the time it became available in Ms Soden's case and from the time Mr Richardson became a full time employee. As stated previously Ms Soden continued receiving a flexi day when she joined the Purchasing Department and Mr Richardson continued to receive a flexi day when he rejoined the Zoo's employment in March 2006 after being absent for some 7 months. 63 Nothing was stated by the Zoo for the Commission to believe that the other two employees of the Purchasing Department Ms Le and Mr Gleichman had been treated any differently to the other two employees in that when they were made full time permanent employees they worked the roster that allowed for a flexi day. I note that those two employees were listed as receiving the email from Ms Keen on 26 February 2007 stating that the accrual system incorporating an RDO had ceased. 64 The letters of Offer of Employment of Ms Le, Mr Richardson, and Mr Gleichman (ExE) noted the Award that they are employed under. It did not state the actual roster pattern that they would work. In summary it is my finding that such a history clearly shows that the flexi day can be implied into all of these employees contracts of employment by reason of the custom and practice applying within the Purchasing Department during their period of full time employment. For a practice to constitute a binding usage it must be shown to be well known and certain in its terms. Both Ms Soden and Mr Richardson gave evidence to that effect. 65 I note again the comments made by Watson J. in Federated Ironworkers' Association of Australia, New South Wales Division and Australian Fertilizers Ltd re overtime( 1977 A.R. 17 at22): In discussing "custom" and "practice" the issue arises whether it is shown to exist in such a way that it is part of the contract of employment and if so not inconsistent with the award. The test applied in this regard in the Furnace Demolishers Case(1960 A.R. at 681-682) as approved by the Commission in Court Session in the Collective Responsibility Case(1972 A.R. 80 at 98) is based on a statement of the relevant principles from Halsbury's Laws of England quoted in the Furnace Demolishers Case as follows: In Halsbury's Laws of England,3rd ed.,vol X1,p. 182, the following appears: Usage my be broadly defined as a particular course of dealing or line of conduct generally adopted by persons engaged in a particular department of business life, or more fully as a particular course of dealing or line of conduct which has acquired such notoriety, that where persons enter into contractual relationships, in matters respecting the particular branch of business life where the usage is alleged to exist, those persons must be taken to have intended to follow that course of dealing or line of conduct, unless they have expressly or impliedly stipulated to the contrary; that is to say that a rule of conduct amounts to a usage; if so generally known in the particular department of business life in which the case occurs, that unless expressly or impliedly excluded, it must be considered as forming part of the contract. Dealing with the characteristics of a usage , Halsbury says at pp. 184-186: Every usage, whether in respect of a particular trade, branch of business or occupation, and whether affecting land or not, must be notorious, cetain, and reasonable, and it must not offend against the intention of any legislative enactment. Every usage must have acquired such notoriety in the particular market or branch of trade or in the department of business or amongst the class of persons who are affected by it, that any person in that branch or department or class who enters into a contract of a nature affected by the usage must be taken to have done so with the intention that the usage should form part of the contract. Notoriety in this connexion does not mean that it must be known to all of the world, nor even that it should be known to the person against whom it is asserted; but it means that it must be well known at the place to which it applies, and be capable of ready ascertainment by any person who proposes to enter into a contract of which that usage would form part. Every usage must be certain. It must be uniform as well as reasonable, and in order to be incorporated as a term in a written contract it must have just as much certainty as the written contract itself. A usage is not , however, bad for uncertainty merely because it depends in its operation upon what a tribunal thinks to be reasonable. 66 I do not believe it was open to the Zoo to unilaterally change the terms of the employee's contract by removing the flexi day. No evidence was brought before this Commission to show that consent existed from any of the employees of the Purchasing Department for this action to take place. 67 In summary it is my finding that the evidence demonstrated a long standing usage or practice involving employees of the Purchasing Department working a particular roster that incorporated a flexi day and that this usage or practice I consider provided a fair and reasonable condition and should not be discontinued. 68 I believe it is allowable for the Zoo to formulate rosters, in accordance with the Award that in a four week( 152 hours) period, provide for both a flexi day and days of duration of hours worked that meet the needs of the Purchasing Department taking into consideration the highs and lows in the daily work load that is experienced. 69 I therefore make the following Order: ORDER 1. That the ordinary hours of work for Ms Soden, Mr Richardson, Ms Le and Mr Gleichman of the Purchasing Department of the Zoological Parks Board located at Taronga Zoo shall be an average of 38 hours per week over a 152 hour 20 day roster cycle and shall be worked over a maximum of 19 shifts in each 20 day roster cycle with staff to accrue one flexi day each 20 day roster cycle to be taken in accordance with normal procedure. 2. I so Order the Zoological Parks Board of New South Wales to take whatever action is necessary so as this Order will come into effect within 21 days from today's date. 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.