Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Department of Justice and Attorney-General [1994] QIRC 420 (1994) 146 QGIG 921

,.,. 920 QUEENSLAND GOVE RNMENT INDUS TRIAL GAZETT E [12 August, 1994 12 August, 199 4] QU EENSLAND GOV ERNMENT IND USTRIAL GAZETTE 921 ####### ############ ################################ ## ## QUEENSLAND INDUSTRIA L RELATIONS COMMISSION Jnduslrial Relations Act 1990 s. 6 and s. 32 - determination o f employment status Austra li an Liquor. Hospitality and Miscellaneo us Workers Union, Queensland Branch, Union of Employees ANO De pa rtment of Justice and A tt orney-Ge neral (No. 8 27 I of I 994) COMM ISSIONER SWAN 29 Ju ly 1994 Dctennination of Employment Status - Casual Employee - Contractual Arrangemen t - Permanent Part-time Status - Cleaner - Work on Regular Basis - Mutual Expectation - No Renego ti ation of Duties - No Part-time Provisions in Award - Tenders for Cleaning Position - No Discussions Regarding Changes - Cleaner Terminated - Cleaner's Tender Appl ication Successful - Dispute Proceedings - State Government Redundancy Policy - Re dundancy Prov is ions Precluded Casual Employees - Such Emp loyees ' ow Eligible for Redundancy Payments - Case Law - Retrospectivity -- Prov isions of Award - No Effort to Vary Award - Broader Imp lications -- Commission Determines Mrs Law had been employed as a Casual du ring the period of her employment. DECISION This application. made by the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch. Union of Employees (the Un ion) on behalf of its member. Mrs Law, seeks a de tenn ination by the Commission, pursuant to sections 6 and 32 or the Industrial Rela1ions Act 1990 (the Act) as to the status of Mrs Law's employment with the Department of Justice and Attorney- General during the period of her employment from January 1974 unt il late 1992. In brief, the question is whether Mrs Law was employed for the duration o f th is period as a cas ua l employee. as claimed by her former employer, or whether she was emp loyed under a contractual arrangemen t which was other than that of a casual (i .e., in terms of this application, one single contract of employment which wo uld en title her to claim pemianent part-ti me employment status). To put the application in context (given that the period of employment in question ceased in 1992), the Union claims that if Mrs Law·s employment status was deemed to have been that of a permanent part-time employee, she wou ld arguab ly have qua lified for a redundancy ·or like payrnentllhder the then State Government redundancy pol icy provisions at the cessation of her emp loyment with her employer in 1992. Mrs L aw 's Employmem His1ory • Mrs Law commenced work as a cleaner at the Blacka ll Co urt House in January 1974. • There is no documentation or direct ev idence ava ilab le concerni ng any negotiations between Mrs Law an<l her employer at the time o f her engagement. • Her immediate employer was the Department of J ustice and Attorney-General. • During the nineteen yea rs of emp loyment. Mrs Law consistently worked 20 hours per week o n a Monday to Friday basis. There appears to have been a mutual expectation between employer and emp loyee over this period of time th at Mrs Law wou ld report for work on this regular basis without the need for fu rt her discuss ion or direction. The ava il able records show that. during this period of time. there was no renegotiation of the du ties pe rfonned by Mrs Law. Mrs Law worked in accordance with the needs expressed by whomever occupied the position of Clerk of the Court at the time. During this period. M rs Law was employed under t he provisions of the Misce ll aneous Workers ' Award - State Govemmem (the Award). That Award made provision on ly for full -time employees and casual employees. There were no pa rt -time provisions in the Award. In the Wages clause of that Award, reference was made to "casual employees" and a casual load ing -- 1 of 3 -- 922 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ 12 August, 1994 of 19%; payment for sick leave for casuals; annual leave provisions for casuals; minimum rates applicable to casuals as well as minimum hours to be worked per engagement. In the "Annual Leave'' provision of the Award, casual employees who were employed for a total period of six months or more during the preceding twelve months received, on termination of employment, a pro rata recreational leave payment. Mrs Law received all of the abovementioned entitlements as well as payment for long service leave upon cessation of employment. Events Surrounding Mrs Law's Cessation of Employment In July 1992, in a move to rationalise Government agencies. thirteen Queensland Government Agency Pilot Program Offices (QGAPP of1ices) were established. One of the QGAPP offices \\as located at Blackall. As a consequence of this change, responsibilities for the Magistrates' Court Offices at Blackall were formally transferred to the Department of Lands from I July 1992. (However, an arrangement was entered into by the Department of Justice and Attorney-General and the Department of Lands that Mrs Law's employment would continue to be administered by the Department of Justice and Attorney-General until the Department of Lands determined the future of cleaning services at Magistrates· Court Offices). In late October 1992, the Department of Lands (in conjunction with Q Build Property Management) called tenders for the cleaning of the Magistrates· Court Offices. It was through observation of an advertisement calling for tenders for the cleaning of the Magistrates' Court Offices al Blackall in the local press, that Mrs Law first became aware of her predicament. There had been no discussions between the employer and Mrs Law. her Union or the Department of Justice and Attorncv-Gcneral regarding these changes. It is acknowledged by the respo~dent that Mrs Law had reason lo be aggrieved by the manner in which her services with her employer were terminated. Mrs Law was notified on 6 November 1992 that her services at the Blaekall Court House were no longer required and that she would be tem1inated ·•effective from the commencement of the new contractor". The date upon which this new contract was to commence was 4 January 1993. Mrs Law was advised that she was eligible to tender for the contract and on 3 December 1992 Mrs Law·s lender application was deemed to be successful. ' As it transpired, Mrs Law ceased employment with her employer on 30 November 1992. Action taken by Applicant between 30 November 1992 and current application At the time of the cessation of employment. Mrs Law. through her Union. instituted dispute proceedings in the Queensland Industrial Relations Commission (the Commission) to claim severance benefits under the provisions of the Polic, for the Management of Redundancy in the Queensland Public Se~tor which had been revised in July I 99 I. This Policy has again been revised and replaced by the actions of the Public Sector Management Commission in January 1994. At the relevant time. the PoliC\ provisions precluded casual employees from benefiting under thts Scheme and covered only employees of Queensland Government departments working in a permanent capacity. These conferences before the Commission failed to resolve the matter to the applicant's satisfaction. It was claimed by the respondent that. since 1992. the applicant had sought varying fonns of relief before the Commission and that it would be inappropriate for the applicant to submit that she had continually and consistentlv sought the same type of relief. In essence, the respondent argued that the current application before the Commission constituted a fresh application. Technically that may be correct. however. the impression gained by the Commission is that Mrs Law had consistently sought to have the overall question of her employment status determined and, in the event that the Commission found in her favour, to seek to pursue any benefits which might flow from that situation. That this pursuit was undertaken bv wav of an array of approaches docs not detract from the applicant's fu;1damental claim and I would find it difficult to accept that the respondent was not aware of the basic thrust of the applicant's assertions during this period of time. Since 1992, correspondence has been entered into between the Union on behalf of Mrs Law and various Government Ministers and representatives of the Public Sector Management Commission. From the applicant's perspective, all were to no avail. Applicant's Submissions Persons now employed in the type of work previously performed by Mrs Law are covered by the Employees of Queensland Government Departments (Other than Public Servants) Award which came into force on 12 November 1993. There is now a recognition in that Award that persons employed doing work similar to that performed by Mrs Law are classified as part-time employees and would be eligible for redundancy payments. under the appropriate circumstances. The submissions of the Union were that, even if Mrs Law had continued in employment when these later changes had occurred, the employer would not have recognised these earlier years when the employee was classified as a "casual" and would onh recognise the period of time since the enforcement of the Award provision which recognised such employees as .. part-time .. employees. To support the claim that the applicant was not a casual employee, the advocate for the Union tendered a number of cases from varying jurisdictions dealing with the question of casual employment. A particular case relied upon by the applicant was (' 1/iggins v. Athenaeum Club (1988 AILR 497) [a decision of the Victorian Industrial Relations Commission in Full Session, Marsh. D.P., Eggington and Conway CC upholding a decision of Bornstein C which found the dismissal of a casual employee to be unreasonable and ordering reinstatement] which encapsulates much of the criteria relied upon in the cases cited which satisfy the test of other than casual employment:- .. The Commission said that what had to be detennined was whether service had been given under one continuing contract or a series of separate contracts ... Citing extensive authorit\ as set out hereunder the Commission had detailed, from thos~ cases. the follov,ing tests to detennine the nature of the contract - • • The number of hours worked p.w.; Whether the employee worked according to a roster system that was published in advance and whether the employment pattern was regular: Whether there was reasonable mutual expectation of continuity of employment: Whether notice was required by an employer prior to the employee being absent or on leave: 12 August, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 923 • Whether the worker reasonably expected that work would be available; and • Whether the worker had a consistent starting time and set finishing time.". On appeal, the Commission in Full Session stated that reliance upon Award classifications or "name[s] given to the employment relationship by the parties" would not necessarily resolve the question of whether an employee was employed under one continuing contract of service or a series of separate contracts. The Commission also stated that the provisions of the relevant award which deemed that, on termination, a casual should be paid pro rata annual leave "indicated that the Award recognised or contemplated, that a casual employee could have his or her employment terminated". In response to this criteria, the Union submitted that Mrs Law continually worked from 5.00 a.m. to 9.00 a.m. each morning from Monday to Friday inclusive. Mrs Law's regular working hours were stronger than a roster, hence the second criterion being satisfied. There was a real expectation that Mrs Law and the employer accepted continuity of employment. Mrs Law was required to give notice of her leave arrangements and, on these occasions, a relief cleaner was found by Mrs Law to fill her position. In terms of the last-mentioned criterion, this element was consistent for 19 years. The applicant also considered the question of whether the payment of casual rates to Mrs Law during the period of her employment meant in some way that she was prohibited from claiming other than casual status. In dealing with this aspect of the case, the advocate relied upon the comments of Haese D.P. in Doyle v. Sydney Steel Co. Ltd (supra) per Mc Tiernan J. at p. 565 (I 986 AILR 515) where he stated:- "That the payment of casual rates and variations in the amount of work performed over a period does not of itself prevent a finding of permanency of employment and, therefore, one contract of employment ... ". Respondent's Submissions The respondent concurred with the applicant's chronology of events as they surrounded Mrs Law's employment history and her termination of employment. Before detailing the major points in contention between the parties, the respondent stated that the application essentially sought a decision which would operate retrospectively. As such they claimed that:- "A decision favouring the applicant would set a precedent. It would create a considerable cost impost on the Government but would, more significantly, affect all employers as it would impose harsh and unjustifiable constraints on employers who could never, with any certainty, be assured that former employees would not, at some undefined future time, approach the Commission to seek a redefinition of employment status which, during the course of the contract of employment was never questioned let alone was the subject of a dispute.•·. Further, it was submitted that the Commission should reject the application for the following reasons:- • The conditions of Mrs Law's employment were detennined by the provisions of the then appropriate Award - Miscellaneous Workers' Award - State Government. That A ward clearly made provision for the engagement of casual labour and also provided for annual leave, recreation leave and other entitlements 148801-71 thereby extending to casual employees benefits which recognised that casuals may be employed on a long term basis. • These provisions of the Award are clear and unequivocal in their meaning and do not require reliance on case precedent for interpretation. • These Award provisions have not been disputed by the Union and its predecessor, The Federated Miscellaneous Workers Union of Australia, Queensland Branch, Union of Employees until recently. • Mrs Law has accepted the Award as determinative of the conditions of casual cleaners in the public sector during her employment with her employer. • For the majority of the time Mrs Law was employed in the public sector, the Award conditions were extremely favourable to employees such as Mrs Law. • Part-time employment was not available to any employee in the Queensland Public Sector until 1988 and then it was extended only to public servants. • Part-time employment was never available under the Award during this period of time and there was no basis for employing casual or temporary employees in this manner during the period Mrs Law worked for her employer. • There was no concerted effort made by the Union during this time to vary the Award lo include part-lime provisions. • It is insufficient and inadequate an argument lo justify the overriding of A ward provisions which, in the past, have been accepted on the basis that these no longer suit the needs of employees. Of specific mention by the respondent was the history of the Award which had covered Mrs Law as it pertained to casuals. The history, for the purposes of this case, charted a course from 1920 through to the making of the new Award in 1993. Provision for casual employees under this Award were in existence, save for a short period of time in 1930 when the rules of the particular Union concerned at that stage (The Queensland Stale Service Union of Employees) could not facilitate casual employees as members. During 1965, after the matter was arbitrated before the Commission, a new provision was inserted into the Award which read- "Clause 28(7) Casual Loading - Except where otherwise expressly provided for in this Award, casual employees shall be paid 15 per cent per hour over the ordinary rate for the class of work which they are performing.''. The respondent states that in the Union's application in that case. there was reference made to seeking an entitlement for part- time employees, however, the decision made by the Commission obviously rejected that component of the application. In 1971, clause 12 (Wages) of the Award stated '"Cleaners employed on an hourly hiring shall be paid at a rate of one-fortieth etc .... ". This provision would have been in existence at the time of the employment of Mrs Law sometime during early 1974. Further variations to this Award over this period of time show that special attention had been given to the conditions applying to casual -- 2 of 3 -- 924 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [12 August, 1994 employees (see "sick leave" provisions and ''rest pauses" amongst other considerations). Submissions also went to the fact that Mrs Law was not deemed to have been an ''officer" of the public service during her period of employment. Conclusion The complexity of this application is that. whilst the Union has asked the Commission to detern1ine only the employment status of its member Mrs Law who ceased her employment arrangement with the employer in 1992, there are much broader implications attaching to this application. This application was made primarily for the purpose of exploring the possibility of extending to Mrs Law redundancy payments from the Government which were available for some categories of Government employees (but not casual employees) at the time of Mrs Law's cessation of employment. Therefore, while the initial question raised in the application must be answered separately, there is l believe, an onus on the Commission to at least give consideration to a number of other factors raised by the respondent as they relate to questions of merit. Before doing that, it is with some degree of difficulty that one attempts to accurately define a "casual" employee and thereby correctly identify the employment status of Mrs Law over her extensive period of employment with the employer. An analysis of a number of cases both in this jurisdiction and others highlights this difficulty (although much of the case law cited, while touching upon the question of the nature of casual employment, goes more to questions of establishing continuity of employment for the purpose of satisfying Long Service Leave statutory requirements of varying jurisdictions as opposed to deterrnining whether an employment relationship consisted of one continuous employment engagement.) Also. against the background of the Award in question being both precise and unambiguous in terrns of the type of employment it covered (i.e. full-time or casual employment). it is also relevant to consider what constituted the employment contract entered into between Mrs Law and the employer at the commencement of her employment. There is no direct evidence on this point. however, the provisions contained within the Award at that time (mentioned later in this decision) are clear in their reference to "casual" employment and there is no record which shows that the employee or her Union ever disputed this situation. (cf. PKJU v. Mirror Newspapers (1992) 141 QGIG 4-5 [a case which deterrnined "continuous service" for the purpose of accessing Long Service Leave] which is distinguishable from this case in that the employees in question entered into a contractual relationship with the employer on the explicit understanding that they were ··pcrrnanenf' albeit "casual'' employees and that within the Industrial Agreement which governed them there was "a lack of provisions which specifically point to the engagement of a casual being one of a series of engagements".) In D. Stewart v. Port .l\°cJar/unga Hotel Ltd ( 1980 AILR 289) (Industrial Court of South Australia heard before Olsson J.) [where it was held that a casual employee was entitled to Long Service Leave under the Long Service Leave Act I 967 in that eligibility depended upon continuity of service and not upon the continuance of a single unbroken contract of employment] the following comments. as they relate to casual employment, were made:- ··The essential feature of casual employment at common law was the entry by the parties into a series of specific engagements on particular occasions, at the conclusion of which neither party had any further legal employment commitment to the other But there were borderline cases and one could draw a distinction between a ·regular or preferred casual' and a ·casual casual'.''. (See also Hase/dine v. Blue Moon Catering Service (1974) 29 I.LB. 619). Mrs Law may well have been a "regular casual'' but whether this changes her actual employment status is another matter. In deterrnining this question, I have also considered two specific Queensland cases deterrnined by the President of the Industrial Court, Matthews J. - namely, Va/ma Anne Mitchell v. The Totalisator Administration Board of Queensland ( 1979) I 00 QGIG 926---927 and Eric Carl Ewald v. Gabinka Pty. Limited (1982) 109 QGIG 39 (both cases deal with Long Service Leave applications and the question of whether the type of employment was "continuous" for the purpose of the relevant Queensland legislation at the time as opposed to whether there was ·'continuity of service" - a concept entailing different legal consequences). In the latter case. which makes reference to Mitchell's case, the facts were that Mrs Jursik (the employee in question) generally worked about 16 hours per week over a period of some 15 years under an award which recognised the engagement of casuals. Jn both cases. mention is made of the ·•rights" that both employee and employer had under their contractual arrangement (e.g. of the employee to be under no obligation to attend for duty on any particular day and for the employer to be under no obligation to roster Mrs Jursik to work if it did not suit) however, as stated by His Honour - "The fact that she did not use them (i.e. the rights) does not alter the legal position··. His Honour went on to state:- "What must be appreciated is that engagement of a person as a casual without more (particularly when the tenns of employment are governed as in this case and in Jfitchel/ 's case (supra) by clauses ofan Award which point to the engagement being one of a series of engagements) carries with it the concept that the Employer is not bound to offer a further engagement and the employee is not bound to accept further engagements if offered. Each period of casual employment terrninates when the particular set of hours on the task in question has been worked. The benefits of leave available to an employee giving continuous service are offset by the higher rates of pay received by the casual.". In both these cases, His Honour dctennincd that the employment was not "continuous". but consisted of a series of separate engagements as deemed by the Award. In this context. one needs to consider the provisions of the Award under which Mrs Law was employed. Amongst a number of provisions relating to casuals. the Award. during the period of Mrs Law's employment stated:-- Clause 3 (Definitions) subclause (.J) - ·'(4) ·casual Employees· shall mean. in the case of female cleaners, employees who are engaged for fewer than twenty- six hours per week or, in all other cases, employees who arc engaged for fewer than forty hours per week: Provided that. in the case of cleaners employed at Primary Schools, a casual employee shall be one who is employed for less than one month or during the absence of a cleaner on leave."; Clause 7 (Wages) subc/ause (2) - •• ... Casual employees shall be paid at the rate of one thirty- eighth of the wage prescribed herein for a 38 hour week for the appropriate classification. plus a loading of 19%. to be calculated to the next highest cent wherever a fraction of a cent results. Accordingly, the minimum rates of wages payable to casual cleaners shall be:- 12 August, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 925 Casual employees shall be paid as for a minimum of two hours' work per engagement."; Clause J7(JJ(b) - "(b) a casual employee \vho has been employed for a total period of six months or more during the preceding twelve months shall. on the tern1ination of employment. be paid pro rat a recreation leave for such period .. :·; and Clause 21 (Engagement) - "21. Employees, other than caretakers who are provided with quarters and casual employees, shall be engaged on a weekly basis terrninable by one week's notice on either side or, in lieu of such notice, payment or forfeiture of one week's pay. " These casual employment provisions are not dissimilar from those contained in the Awards applicable in both Mitchell and Gabinka 's cases. Based upon this inforrnation, it is understandable that it can be confusing to reconcile the provisions of the Award and His Honour's decisions with the factual situation in this case if one compared it with the criteria as detailed in cases such as C. Higgins v. Athenaeum Club (cited earlier). However, despite the fact that many of the features of Mrs Law's employment are similar to those referred to in a number of cases cited, one cannot disregard the provisions of the Award. (See Gabinka's case, previously cited). The Award is redolent with provisions which cater exclusively for casual employment. From the time of the commencement of Mrs Law's employment when the Award referred to "cleaners employed on an hourly hiring'' through to previously referred to provisions, it is clear that Mrs Law, al the commencement of her employment and for the duration of it, was employed as a casual employee. (Sec Mitchell's case earlier cited. where His Honour. Matthews J. stated ''. . where the references under clause J3 to ·each engagement' and under clause 15 to 'the engagement' strongly suggests that on each day the casual works, he is working pursuant to the contract of employment for that day''). It is accepted that the Award in question gave recognition to the fact that many employees (such as Mrs Law) might be employed for some period of time and as a consequence of this recognition, other benefits were put into the Award to cater for these circumstances (e.g. Long Service Leave provisions). This of itself does not alter the legal situation of Mrs Law·s employment. In this instance, the provisions of the Award were clear and explicit; the employee was engaged as a casual, and notwithstanding the regularity or length of the employment, which of itself does not establish continuous employment, the employment contract was entered into with no guarantee of continued employment for even the award minimum duration of one week. (Sec re Automatic Totalisators Limited (defendant) v. Raymond John Kingston (informant) Victorian Industrial Appeals Court 17.12.1974 (unreported)). As such, I find that Mrs Law had been employed as a casual during the period of her employment. The application before the Commission asks no more than to deterrninc Mrs Law's employment status. Having done this. I am aware that the Union. were the Commission to have found in their favour. \vould have attempted to pursue other entitlements which they believe their member should have received. I have had limited submissions from the applicant on this aspect of "other entitlements", however, I have received somewhat detailed submissions from the respondent on this point. Notwithstanding that, the intentions of the Union in this matter were quite clear to all concerned. While I accept that having made a determination on the position of Mrs Law's employment status, any merit argument on the point is academic, I propose to at least make comment on the further submissions made by the respondent as they go to questions of merit. I do this because from a merit perspective, I also believe the decision to be fair and reasonable under the particular circumstances of this case. There is much for the Union to consider in the submissions which have been made by the respondent as they go to questions of merit. The fact that all parties concerned during the period of time under review accepted the category of "casual" employee as applying to all employees in this situation; the legitimate expectations of employees during the period in question would not have included being seen as anything other than a casual employee; questions of certainty in employment relationships is a further relevant consideration; the robustness of the Award in question over a lengthy period of time (and the apparent lack of any real disputation over the point currently in contention) suggests quite strongly that all parties, possessed of extensive industrial relations expertise, were comfortable with the provisions contained within the Award as they pertained to employees such as Mrs Law; the provisions contained within the Award which ensured that employees such as Mrs Law were afforded greater benefits over and above those attaching to casual employees; policy provisions and qualification requirements attaching to the Government redundancy schemes; and retrospectivity, amongst other relevant considerations, all go towards suggesting quite strongly that Mrs Law was not disadvantaged by the employment arrangement she had with her employer in accordance with the Award which covered her during her employment. In a practical sense, Mrs Law appears to have been better off financially having been classed as a casual employee during this period of time than she would have been if she were a perrnanent part-time employee (receiving an hourly rate of pay without the casual loading) in receipt of a redundancy payment at the cessation of her employment. The fact that the parties have collectively reviewed and agreed on the position of similar employees in the current Employees of Queensland Government Departments (Other than Public Servants) Award as being perrnanent part-time employees has no bearing on the situation as it relates to Mrs Law. While Mrs Law had reason to be offended by the manner in which her services with the Government were terminated. the reality in her case was that she was re-engaged under differing employment arrangements. This re-engagement in itself may have precluded her, in any event, from obtaining the relief which she had sought through the application. Notwithstanding these merit considerations. the applicant has not persuaded the Commission that it should construe what was in fact a lengthy casual employment engagement as a pennanent part- time employment arrangement. I order accordingly. D.A. SWAN, Commissioner. Appearances:- Mr R. Monaghan, for the Australian Liquor. Hospitality and Miscellaneous Workers Union. Queensland Branch. Union of Employees. Ms M. McGinity, with her Mr W. Brammer, for the Department of Employment, Vocational Education, Training and Industrial Relations. Operative Date: N/A Decision - Employment Status Released: 29 July 1994 -- 3 of 3 --