Industrial Relations Commission of New South Wales CITATION: Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union -v- Linfox Armaguard [2006] NSWIRComm 1001 NOTIFIER PARTIES: Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union RESPONDENT Linfox Armaguard Pty Ltd FILE NUMBER(S): 6622 of 2004 CORAM: Cambridge C CATCHWORDS: Industrial dispute - stand down - casual employees - interpretation of industrial instrument - insufficient and conflicting evidence - no clear right to stand down - no work no pay - held that employees where not engaged on a casual basis - Award breach - orders made for payment to employees - amounts ordered established upon equity and good conscience. LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Ryde-Eastwood Leagues Club Limited v. Taylor, Full Commission of Industrial Relations Commission of New South Wales, [Bauer and Hungerford JJ, Murphy CC], 56IR at 385. HEARING DATES: 11/11/2005 DATE OF JUDGMENT: 01/23/2006 NOTIFIER Mr H Mette LEGAL REPRESENTATIVES: RESPONDENT Mr R Krajewski DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES COMMISSIONER CAMBRIDGE 23 January 2006 Matter No IRC 6622 of 2004 Notification under section 130 by New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union of a dispute with Linfox Armaguard re casual employees stood down. DECISION [2006] NSWIRComm 1001 1 This Decision arises from proceedings that were initiated by way of notification of an industrial dispute made pursuant to section 130 of the Industrial Relations Act 1996 [NSW], (the Act). The dispute notification was made on 11 November 2004 by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (the USU). The respondent to the industrial dispute is Linfox Armaguard Pty Ltd (ABN83099701872) trading as Armaguard (Linfox). 2 The Commission attempted to resolve the industrial dispute by conciliation. Conciliation was attempted before the Commission on 15 November 2004, 17 December 2004, 25 November 2004, 24 February 2005, 7 April 2005, 6 June 2005, 1 July 2005 and 26 July 2005. On 27 July 2005, the Commission issued a Certificate of Attempted Conciliation as required by section 135 of the Act. 3 On 26 September 2005, the USU filed a document entitled "Outline of Relief Sought and Contentions in Support of the Application". This document indicated that the USU sought that the Commission make two determinations pursuant to section 175 of the Act and further, that the Commission make Orders pursuant to section 380 of the Act for recovery of unpaid remuneration to various identified employees of Linfox. Given the nature of the Relief sought by the USU, the Commission listed further proceedings in the matter in order to establish what procedure would be anticipated to provide for dealing with the USU application. 4 Subsequently it was clarified that the Parties jointly requested that the USU application as identified by way of the Outline of Relief Sought and Contentions in Support of Application document filed on 26 September 2005, should be determined by way of the provision of documentary material only. In this respect the Parties submitted a document entitled Agreed Statement of Facts, and Linfox provided written submissions in reply to the USU application and accompanying documentation. Finally the USU provided a documentary reply to the submissions made by Linfox. The USU response document was provided during proceedings held on 11 November 2005. FACTUAL BACKGROUND 5 Although the Parties provided an Agreed Statement of Facts there were a number of contradictions that can be identified as between the assertions of facts made in the respective submission documents when compared with the Agreed Statement of Facts document. Notwithstanding these contradictions there was a clearly discernable summary of the relevant facts that gave rise to the industrial dispute and the consequent basis advanced for the USU's application. 6 Relevantly Linfox engages people to perform clerical and administrative duties which primarily involve counting of cash. For the purposes of this Decision these employees shall be referred to as "the USU employees". The USU employees perform duties at various sites throughout New South Wales. The performance of these administrative and clerical duties, primarily involving cash counting, is work governed by two Industrial Instruments. The relevant industrial instruments are firstly, The Clerical and Administrative Employees (State) Consolidated Award, (the Award), and secondly, the Armaguard NSW (Clerical and Administrative) Enterprise Agreement 2004 - 2006 (the Agreement). 7 The industrial dispute arose from the impact of wildcat strikes taken by members of the Transport Workers Union (TWU), who are engaged by Linfox in other areas of the cash in transit operations of Linfox. Essentially the strike action by the TWU members of Linfox meant that there was little or no money for counting on occasions when the wildcat strikes occurred. On these occasions Linfox had no useful cash counting work for the USU employees to perform. A significant number of these USU employees are engaged by Linfox as so called "casual employees". Although they are called "casual employees", the USU employees engaged primarily for cash counting duties, are engaged via rosters that are determined at least seven days in advance. 8 On particular occasions dating back to 19 December 2003, the wildcat strike action of the TWU members employed by Linfox caused there to be no useful cash counting work that could be undertaken by the USU employees. On these occasions, identified as 19 December 2003, 3 May 2004, 4 May 2004 and 8 November 2004, (the dates of strike action), Linfox management personnel contacted various of the so called "casual" USU employees and advised them of the strike action by the TWU and indicated that there was therefore no useful work to be performed as previously anticipated by way of their rosters. 9 Although Linfox management personnel attempted to make contact with all so called "casual" USU employees to advise of the absence of work, not all employees were contactable. Consequently some of the so called "casual" USU employees attended for work as rostered, and were paid for a minimum engagement period of four hours. Some of the so called "casual" USU employees that were not contacted and presented for work as rostered did complete a full rostered engagement. Those so called "casual" USU employees who were contacted and advised of the absence of cash counting work, did not present for work and were not paid any amount in respect to the previously rostered engagements. 10 The primary contention of the USU and the underlying basis for the industrial dispute, has been the assertion that Linfox had no lawful right to refuse engagement and/or payment in respect of these rostered engagements. In broad terms the USU has asserted that Linfox could not rely upon the so called "casual" nature of the employment of these particular individuals, nor could it rely upon any provision in either the Award or the Agreement that would permit the refusal to engage and/or pay in accordance with the rostered engagements that were applicable for these employees in respect of each of the four dates of strike action. THE USU SUBMISSIONS 11 The USU submitted that on each of the four dates of strike action, Linfox instructed various of the USU employees not to attend for work in accordance with the established roster. According to the USU, this contact was made by telephone and represented the stand down of the employees so contacted. The USU submitted that Linfox could not rely upon the purported casual nature of the employment so as to permit this stand down. 12 The USU made detailed written submissions regarding the alleged casual nature of the employment in question. The USU submissions referred to a variety of decided Cases where there had been a distinction drawn between casual employment in name and in nature. In particular, the USU referred to the case of Ryde - Eastwood Leagues Club Ltd V. Taylor Ryde-Eastwood Leagues Club Limited v. Taylor, Full Commission of Industrial Relations Commission of New South Wales, [Bauer and Hungerford JJ, Murphy CC], 56IR at 385. and submitted that the circumstances of the employment in question established that these so called casual employees had ongoing employment identified most significantly, by the established roster arrangements. According to the submissions of the USU, the employees in question were employed on continuing contracts of employment and not therefore casuals. 13 The USU submissions then asserted that there was no expressed or implied term that could be identified which gave Linfox the right to stand down the USU employees. The USU submitted that in the absence of any expressed or implied provision to permit the stand down of the USU employees, the action of Linfox in advising employees that they would not be required for work on the four dates of strike action was not available unless Linfox had sought to activate the stand down provisions that are provided for in section 126 of the Act. Therefore the USU sought payment for remuneration for the period that any of the USU employees were unlawfully stood down on the dates of strike action. THE LINFOX SUBMISSIONS 14 The written submissions made on behalf of Linfox strongly opposed the USU applications. Linfox submitted that the subject matter of the original dispute notification did not deal with the question of the status of the USU employees as to whether they were true casuals or not. Therefore Linfox said that the aspect of the USU's application seeking determinations about the status of the USU employees was not a matter that was identified in the industrial dispute notification. 15 In respect to the employment status of the USU employees, Linfox submitted that the USU had not raised any concern about the engagement of these employees on the casual terms. The submissions made by Linfox mentioned that the USU employees were paid a casual loading and that the Award and the Agreement provided that a casual employee was one who was engaged and paid as such. 16 Linfox further submitted that the difficulties with regular engagement of casual employees had been a matter of broader concern and had led to a process of "casual conversion" that was being steadily progressed throughout Australia. In these circumstances, Linfox submitted that there had been long standing acceptance of the arrangements for the USU employees, and that there had been a systematic and sensible program of conversion to deal with the underlying difficulties of regular engagements of casuals over prolonged periods. 17 The submissions of Linfox then urged the Commission to adopt a practical approach to the industrial disputation and the circumstances that were visited upon Linfox. Linfox submitted that it would be unreasonable for them to have to "pay twice" for the disruption suffered as a result of the TWU wildcat strike action. 18 Linfox said that it had acted fairly and reasonably when presented with these circumstances. It endeavoured to contact all the casual employees but was not able to do so. Those that could not be contacted were paid a minimum of four hours and performed "maintenance" work at their respective locations. Linfox further submitted that in the context of its particular operations involving the cash in transit industry, it had acted in a way that any reasonable employer would consider appropriate. 19 Linfox further submitted that although there was no specific stand down provision in either the Award or the Agreement, the Award did contain a provision which contemplated emergency circumstances where commencement and finishing times could be varied. The submissions made by Linfox asserted that the Commission should have some practical regard for the wildcat strike action and the emergency that was created on each of the four dates of strike action. According to Linfox, the Commission should therefore accept that the Company was faced with an emergency situation and it acted reasonably in those circumstances. 20 The submissions made by Linfox also referred to numerous decided Cases about circumstances that gave rise to the insertion of stand down provisions in Industrial Instruments. Linfox submitted that by cancelling or altering the rostered shifts of the USU employees, there had not been a stand down. In any event, according to the submissions made by Linfox, the Commission should have regard for the long standing principle of no work no pay. According to Linfox, the USU employees did not protest when advised of the requirement not to attend on the four dates of strike action. Linfox said that the USU employees all knew that in an absence of there being any money there was no useful work that they could perform and therefore, it was understood that there was no practical purpose served in being engaged for the particular rostered arrangements. 21 Linfox made detailed submissions in respect to the principle of no work no pay. In particular Linfox urged the Commission to adopt a common sense and practical approach to a position that it had faced when severely disrupted by the wildcat strike action of the TWU. Consequently Linfox urged the Commission to reject the applications made by the USU. CONSIDERATION 22 The USU application which has become the subject of the Arbitration proceedings in this instance, is a curiously constructed approach to the resolution of the issue that underpins the industrial dispute. The USU has sought two determinations to be made pursuant to section 175 of the Act. The first determination sought is described as follows: " A determination pursuant to s175 of the Industrial Relations Act 1996 ("Act") that employees affected by the dispute are employees with an ongoing contract of employment, and not "casual" in the sense that they are employed on separate discrete contracts of employment". 23 It would seem that a determination of this nature is essentially a finding of fact as opposed to an interpretation of any law or instrument. If the Commission was asked to interpret the relevant provisions of both the Award and the Agreement, it would seem that for such purposes all that may be applicable to satisfy the definition of casual employee is that a particular individual is engaged and paid as such. Those particular words "engaged and paid as such" are included in both the Award and the Agreement. 24 It must be noted that neither the Award nor the Agreement states that a casual employee is a person engaged on a casual basis. If the determination that is sought by the USU is confined to a question as to whether the USU employees were engaged on a casual basis or not, then the matter is reasonably simple. The matter is no more than an analysis of the factual circumstances where the USU employees, although engaged and paid as casuals, were clearly not engaged on a casual basis. 25 The USU employees were described as casual employees and they were paid loadings applicable to casual employees. However they were not engaged on a casual basis. The USU employees performed regular work that was arranged by way of rosters fixed at least seven days in advance. The arrangement for work to be performed in this fashion could not, on any objective analysis, be described as engagement on a casual basis. This distinction between so called "true" casuals and employees described and paid as casuals, has been the subject of various decided Cases and perhaps, most notably the Full Bench Judgement of this Commission in the Ryde-Eastwood Leagues Club Ltd v . Taylor. 26 Therefore the first element of the USU application may not be properly a matter for determination as contemplated via section 175 of the Act. Instead it may be that as a finding of fact, the Commission should record that the engagement of the USU employees by Linfox on regular and systematic roster arrangements does not constitute employment of a casual nature. 27 Therefore any failure to provide work in accordance with the rostered arrangements could not be made upon any reliance on the nature of the employment, to be purportedly that of a casual. Consequently Linfox could not use the purported casual employment so as to avoid the obligation to provide for the engagements that would be reasonably anticipated by the established rosters. This would also mean that if Linfox refused to engage and/or pay the USU employees on the dates of strike action it could not rely upon the purported casual employment as lawful basis for any such refusal to either engage or make payment for at least any minimum terms of engagement. INDUSTRIAL INSTRUMENT PROVISIONS 28 The second component of the USU applications seeks a further determination pursuant to section 175 of the Act in the following terms: " A determination pursuant to s175 of the Act that there is no power in contract law or under the Armaguard NSW (Clerical and Administrative) Enterprise Award 2002 - 2004 ("Award"), or otherwise to stand down such employees without pay, and that as a result the stand down as described in paragraphs 16 to 24 a claim for unpaid wages [sic] ." 29 This particular aspect of the USU application mentions an "Enterprise Award 2002 - 2004" and the Agreed Statement of Facts identifies that Industrial Instrument and refers to it as "the EA". It is apparently, an earlier agreement to that as identified as the Agreement. The Commission is somewhat at a loss to understand why an earlier agreement would be referenced to this particular element of the USU applications. 30 The Commission understood from the Agreed Statement of Facts, that the relevant Industrial Instruments were the Award and the Agreement, and although perhaps the "EA" may have been relevant at the time of the strike incident of 19 December 2003, it could not have been relevant to any other of the dates of strike action. However the Commission has considered that for the purposes of this matter, there is no material difference in the relevant provisions of either the EA, the Award of the Agreement. 31 In respect to this element of the USU application it should be noted that the Linfox submissions at paragraph 36 stated: "It has been put that there is no stand down provision in the parent Award - the Clerical and Administrative Employees (State) Consolidated Award. Yet, the Award and its predecessors has [sic] never provided for a stand down clause. " 32 It would therefore seem that there was no contest that no relevant Industrial Instrument contained an expressed stand down provision. However the Commission also remains perplexed at the USU response to this particular apparent concession made by Linfox. The USU response stated: "The submissions in these paragraphs 36 - 40 are nonsensical and should be disregarded. The reasons for the absence of a stand-down clause in the award are not relevant to the resolution of the dispute, and nor is the presence of such a clause in any other award." 33 Despite this strange conundrum, the Commission has been asked to make out a determination that there is no power in contract law or under the EA or otherwise to stand down such employees without pay. 34 It would seem that by consent, the Commission could determine that there was no expressed stand down provision in any relevant Industrial Instrument. However it would remain open to argument as to whether there was either an expressed or implied capacity to allow Linfox to make changes to the USU employees' commencement and ceasing times in the circumstances as were established in this instance. In this regard it is relevant to note that the Award at Clause 6(i)(g) states: "The starting time when once fixed in accordance with this sub clause shall not be altered without seven days notice being given by the employer to the employee. However, in an emergency, an employer and an employee may agree to change such employee's commencing and ceasing times with less than seven days notice provided that the employee shall be entitled to have a union delegate present when such matters are discussed." 35 There was little doubt that the circumstances created by the TWU strike action would constitute an emergency for Linfox's operations. Although not specifically contended by Linfox, it may be capable of argument to suggest that the notification to the USU employees and the acceptance of the change to the commencement and ceasing times broadly complied with the provisions of the Award Clause 6(i)(g). 36 It has been difficult to establish precisely what occurred when each of the USU employees were advised of the requirement to not work on each of the dates of strike action. At paragraph 62 of the Linfox submissions it was stated that there was no protest from any of the USU employees. If that be the case, and in the absence of any of the individuals giving evidence about the detail of their particular circumstances on each of these occasions, could it not be implied that any failure to protest or disapprove of the advice regarding the alteration to the roster commencement time was reasonably taken to have represented agreement to that change? 37 An additional consideration involves the proviso contained in Award Clause 6(i)(g) that the employee would have an entitlement to have a Union delegate present when such matters were discussed. This is also problematical because of the absence of any witness statements or witness evidence regarding the particular conversations that occurred when the USU employees were advised of the requirement not to attend for work on the four dates of strike action. 38 In the absence of evidence as to the particular circumstances of the discussion regarding the alteration to the rostered engagements, it is conceivable that the entitlement to have a Union delegate was provided but was waived by each of the individuals when they gave their implied or expressed agreement regarding the alteration to the particular rostered engagements. Additionally, although not advanced by the submissions made by Linfox, it is arguable that the entitlement is one which requires activation on the part of the employee and that in the absence of any such activation there is no requirement on the employer, in this case Linfox, to actually provide a Union delegate during any such discussions. 39 Consequently the difficulty the Commission faces is that there may well have been a factual position that broadly satisfied the requirements of the Award Clause 6(i)(g), and if that be so, then Linfox would have been expressly entitled to alter the engagements on the four dates of strike action. The Commission just does not know whether one or more of the Linfox management personnel advised one or more of the USU employees of the desire to change the roster arrangements and mentioned the entitlement to have a Union delegate present if the particular employee wished. Then in response, the employee(s) wavered the requirement to have a Union delegate present, and agreed (inferentially or explicitly), to the changed arrangements. If the circumstances were broadly as just described, then Linfox would have had an expressed right as obtained from Award Clause 6(i)(g), to change the start and finish arrangements for the USU employees. 40 Consequently it would seem that in the absence of any evidence about the detail of the discussion that took place between the various individuals, that being the relevant Linfox management personnel and the USU employees, there could be no proper determination made as to whether or not Linfox's actions were capable of support from the terms of Clause 6(i)(g) of the Award. 41 This is a less than desirable position for the Commission to be provided with in respect to Arbitration proceedings. Although the Commission might reasonably guess that it was unlikely that any of the Linfox management personnel mentioned the entitlement to have a Union delegate present during the discussions regarding the alteration to the rostered engagements, it equally appears very likely that none of the individuals offered any protest, and many may have expressly agreed to the advice regarding changed arrangements. 42 Consequently the Commission has insufficient evidence to enable it to make any determination as might be contemplated by the USU applications in respect of the second element involving an alleged absence of legal entitlement to support the actions of Linfox in standing down or otherwise not engaging or paying the USU employees on the dates of strike action. 43 The absence of any direct evidence regarding the circumstances of the advice to the USU employees about the changed engagements is compounded by contradictions regarding the circumstances as can be identified in the Agreed Statement of Facts. 44 At paragraph number 9 of the Agreed Statement of Facts, it is recorded that on the dates of strike action the USU employees of Linfox "...were instructed not to attend work because the road crew employed by the company were on strike, and because as a result there was no work to do." In the next paragraph, rather than the words "...were instructed" being used, the terminology changes such that the USU employees were told "they were not required to come into work". In paragraph 12 of the Agreed Statement of Facts the terminology alters again and it is stated that "Employees who were advised not to attend work, ...". 45 Consequently the absence of any direct evidence is compounded by the different descriptions used in the Agreed Statement of Facts for the particulars of the discussions that occurred between Linfox management personnel and the USU employees. It would seem that on the basis of the Agreed Statement of Facts, Linfox may have instructed some employees not to attend work, advised others that they were not required to come into work, or alternatively advised others not to attend work. Therefore the Agreed Statement of Facts only compounds the difficulty faced by the Commission in the absence of any direct evidence. 46 It would seem that a reasonable presumption may be that some of the Linfox management personnel may have issued a direct instruction not to attend, whilst other may have explained the circumstances of the strike action and indicated that there was no useful work to be performed and that the relevant employee would not be required. If, in some circumstances the less stringent advice as opposed to any instruction or direction, led to an expressed agreement, then there would be strong prospect for Linfox to have made the changed arrangements broadly in conformity with Clause 6(i)(g) of the Award. 47 Alternatively, if the Linfox management personnel issued a blunt instruction not to attend for work, then there would be no expressed or implied capacity upon which to legally validate that instruction. However, the apparent acquiesce of the USU employees to either the instruction and/or the advice regarding the changed roster arrangements, provides support for the proposition that there was an agreement to permit late re-arrangement of rostered engagements. 48 It is very regrettable that the absence of direct evidence has provided incapacity for the Commission to be able to conclusively determine important aspects of this matter. Nevertheless the Commission is mindful that these proceedings are endeavouring to settle an industrial dispute. Further, the Commission is not bound by the rules of evidence and is to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms. In this respect, and in view of the objects of the Act, particularly that of section 3(a) of the Act to provide a framework for the conduct of Industrial Relations that is fair and just, it would seem that on the balance of probabilities, Linfox did not comply with the provisions of Clause6(i)(g) of the Award and did not establish agreement with the USU employees in respect of the changed arrangements for each of the dates of strike action. Consequently the Commission is prepared to provide for an Order to be made pursuant to section 380 of the Act, but limited in its scope to provide for equity and good conscience having regard to the particular circumstances of this case. ORDERS Having regard to the circumstances presented in this case, the Commission Determines that Linfox did breach the terms of Clause 6(i)(g) of the Award when it failed to properly secure agreement from its employees who were not provided with work or payment in respect of rostered engagements that had been established for 19 December 2003, 3 May 2004, 4 May 2004 and 8 November 2004. Consequently the Commission hereby Orders that: Linfox pay to each of those employees who were not provided with engagement or payment for any work as rostered for the above mentioned dates, an amount, in respect of each of those dates, equivalent to two hours ordinary remuneration. The amounts hereby Ordered are to paid to each of those employees as soon as practicable, and within twenty eight days from the date of this Decision, 23 January 2006. oooOOOooo 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.