Australasian Meat Industry Union of Employees (Queensland Branch) v Inghams Enterprises Pty Ltd [2002] ICQ 7 (2002) 169 QGIG 153

22 February, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 153 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission Australasian Meat Industry Union of Employees (Queensland Branch) AND Inghams Enterprises Pty Ltd (No. C84 of 2001) PRESIDENT HALL 14 February 2002 DECISION This is an appeal against a decision of the Queensland Industrial Relations Commission. The decision is now reported at 168 QGIG 267. In those circumstances, it is unnecessary to refer to the facts in any detail. It is sufficient to say that upon the closure of its Park Ridge plant the respondent refused to pay severance payments to a group of the employees whose employment came to an end with the closure of the plant. The appellant, the relevant industrial organisation of employees, notified the Queensland Industrial Relations Commission of a dispute between itself and the respondent about the refusal to pay severance payments. Conciliation was unsuccessful. With the consent of the parties the Commission set about arbitration of the matter pursuant to s. 230(3)(b) of the Industrial Relations Act 1999. Because of the way in which the matter reached the arbitral stage, the pleadings were not as satisfactory as they might have been. However, it emerges clearly enough that there were two issues before the Commission. One, it was contended that on the proper construction of the Inghams Enterprises (Park Ridge Processing) – Certified Agreement 2000 (CA401 of 2000) the group of former employees who remained unpaid were entitled to severance payments. Two, it was contended that the group of former employees who remained unpaid were entitled to relief pursuant to s. 87 of the Industrial Relations Act 1999. The appellant failed on both issues. Only the second issue has been agitated on the appeal. -- 1 of 3 -- 154 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 22 February, 2002 Both before the Commission and on the appeal the matter was conducted on the basis that the group of employees who remained unpaid were not entitled to a remedy under s. 87 if they were casual employees. I propose to deal with the matter on the basis that the parties’ assumption is correct. In fairness, I should add that because s. 72(3) provides that:– “Sections 87, 88 and 89 do not apply to an employee with less than 1 year of continuous service.”, and because there is a line of Queensland authority denying that a series of casual engagements, howsoever factually continuous, fall the concept of “continuous service”, see V.A. Mitchell v The Totalisator Administration Board of Queensland (1979) 100 QGIG 926 and EC Ewald v Gabinka Pty Ltd (1982) 109 QGIG 39, the assumption may well be correct. “Casual employment” is a popular rather than a legal concept. I adhere the view which I expressed in Julia Ross Personnel v Wain (2001) 166 QGIG 350 at 350:– “In Doyle v Sydney Steel Co Limited (1936) 56 CLR 545 Starke J observed ‘the description “casual worker” is not one of precision; it is a colloquial expression . . .’. At 555 Dixon J observed ‘ . . . what is casual employment is ill defined’. At 565 McTiernan J adopted the observations of Hamilton LJ in Knight v Bucknill (1913) 6 BWCC 164 at 165 ‘I think that “casual” is here used not as a term of precision, but as a colloquial term.’. Subsequent decisions have not given to the expression ‘casual employment’ the precision then found to be lacking. However, the law now recognises that there exists (at least) two classes of employee colloquially described as ‘casual’. One class has the characteristics described by Moore J in Reed v Blueline Cruises (1996) 73 IR 420 at 425, viz informality, uncertainty and irregularity in the engagement. The other class of casual is distinguished by a relationship in which the casual employee works a regular pattern of hours within an ongoing employment relationship, see generally Ryde – Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385, AMASCU v Auscript (1998) 83 IR 38 and Bluesuits Pty Ltd v Graham (1999) 101 IR 28.”. On the appeal it was contended that the class of employee referred to in the last sentence of the paragraph was a “casual employee” only in the colloquial sense and was not a casual employee in the legal sense. That submission, with respect, reverses the effect of the paragraph. The truth is that the difficulty arises because in law the latter category are “casuals”. Persons engaged on a regular pattern of hours for a significant period of time and whose relationship with the employer is ongoing and, to an officious bystander, indistinguishable from the relationship between a worker employed on an indefinite hiring and his/her employer, may be found in law to be “casual employees”. The difficulties are exacerbated where, fastening upon the similarity of the relationship to an indefinite hiring, such casual employees secure from the employer benefits normally made available to employees on indefinite engagements, e.g. family leave. A sufficient alteration of subsequent of rights and duties of the parties may, of course, bring about a change in the true nature of the relationship though the parties persist with an nomenclature “casual employment”. The consequence is that there will always be room for debate about the correct classification of employees engaged as “casuals” with apparent similarities to employees on indefinite engagements and similar rights to employees on indefinite engagements. This was such a case. It is sufficient to refer to the Commission’s summary of the evidence:– “Mr R. Richardson, Branch Secretary of the union and a full-time union official since 1988, in evidence stated (inter alia):– • in the poultry industry, industrial agreements existed on the ratio of casuals to permanent employees; • employees engaged on a permanent basis who are made redundant would receive benefits in accord with the TCR Policy Statement of the Commission as well as additional entitlements set out in the Certified Agreement; • approximately 4 years ago the respondent began recruiting new employees from a labour hire agency. Such employees were engaged on a ‘casual’ basis; • such casuals were paid in accordance with the Award and Certified Agreements covering the Park Ridge Plant; • all of these employees were required to comply with the following employment conditions:– • present for work daily unless informed the day before that they were not required; • work to the provisions of a published roster; • notify the respondent if they were sick or otherwise unable to attend work on any day if rostered to work; • be subjected to the respondent’s absenteeism disciplinary procedures if they failed to attend for work on a regular basis; • work regular, stipulated hours every day; • work 38 hours per week (and at times, overtime in excess of 38 hours) on a regular basis; and • notify the respondent when they wished to take unpaid leave and seek approval for same. • seniority systems are common for casuals in the poultry industry; and • length of service for the employees in question ranged from 1 to 4 years. Mr J. Crammond, Plant Manager of the respondent, gave the following evidence (inter alia) • he was employed by the respondent since 1961; • up until August 2001, the respondent operated 2 primary poultry processing plants at 162 Murrarie Road, Murrarie and Beaudesert Road, Park Ridge; • the Park Ridge plant ceased operations on 9 August 2001; • he was involved in discussions with the union regarding the closure of the Park Ridge plant; • he was involved in the negotiations for the Certified Agreement 2000; • redundancy entitlements were the subject of considerable debate leading up to agreement being reached. Casuals were a feature of those discussions; • the respondent maintained the position that casuals would not be entitled to redundancy benefits; • casuals can be employed on a regular and consistent basis for a significant number of hours per week for a period of at least 12 months and have a reasonable expectation of continued employment as contemplated by both the Poultry Slaughtering Award – State – Seniority – Ingham Enterprises Pty Ltd, Park Ridge – Industrial Agreement (the Agreement) and the Certified Agreement 2000 mentioned earlier; and • from January 2000 all new employees were instructed that the Park Ridge plant would be closing and they would remain as casuals.”. Some complaint was made about the finding about rosters. It is sufficient to say that an examination of the transcript shows that there was a conflict of evidence. It was for the Commission as the arbiter of fact to choose which body of evidence should be preferred. One may debate the way in which the Commission weighed and resolved the various indicators of the nature of the relationship. But once it is conceded that upon all of the facts there is a reasonably debatable question whether the work is casual work, it is in truth conceded also that there is no error of law on which to base an appeal, compare Doyle v Sydney Steel Co. Ltd (1936) 56 CLR 545 at 551 per Starke J and Julia Ross Personnel v Wain (2001) 166 QGIG 350 at 351. It is contended for the respondent that relief pursuant to s. 87 may not be granted to a group of employees and that a separate application must be made by each employee. There is nothing in the language of the section to suggest such a restriction. Certainly, the noun used “employee” is singular. But by s. 32C of the Acts Interpretation Act 1954 words in the singular include the plural. What makes the relief at s. 87 available is the decision to “dismiss 15 or -- 2 of 3 -- 22 February, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 155 more employees”, see s. 86 and Harrison v Electcom Ltd (2000) 163 QGIG 347 at 349. It would be odd if the Commission were denied power to review the whole of the decision. Doubtless there will be cases in which it is appropriate to deal with employees individually. The Commission has ample power to do that, see s. 330(b) and (c). But in the case of a statute which, inter alia, is directed at the resolution of group conflict there is no apparent reason for denying that s. 87 vests power to deal with a group of employees. It is to be noticed that the Industrial Relations (Tribunals) Rule 2000 by r. 125(2) assumes that proceedings under s. 87 may relate to a number of employees. It was faintly argued that relief under s. 87 was not available because such relief would be inconsistent with the Inghams Enterprises (Park Ridge Processing) – Certified Agreement 2000 (CA401 of 2000). The advocate for the respondent was unable to take me to any authority for the proposition. There is no express provision in the Act to that effect. There are conceptual difficulties with the notion that in granting recognition to agreements entered into between an employer and a group of employees, the legislature intended to give legal effect to agreements derogating from the very statute which grants recognition. On the argument which has been put, I am not disposed to accept the argument. In all the circumstances I dismiss the appeal. Dated this fourteenth day of February, 2002. D.R. HALL, President. Released: 14 February 2002 Appearances:– Mr L. Norris for the Australasian Meat Industry Union of Employees (Queensland Branch). Mr J. Jones of Jones Ross for Inghams Enterprises Pty Ltd. -- 3 of 3 --