ALHMWU v Cranbourne RSL Sub Branch Inc - [1999] FCA 1425

FEDERAL COURT OF AUSTRALIA
ALHMWU v Cranbourne RSL Sub Branch Inc [1999] FCA 1425
AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION, ANDREW WEREMIJENKO, KATHLEEN BEADEL, BRUCE FORBES,
DAMIAN BEADEL, NATALIE SIMS, BELINDA MALLINSON and
SAMANTHA JANE SHEPHERD
-v- CRANBOURNE RSL SUB BRANCH INC, PETER SMITH and PETER SOMERS
V 556 OF 1999
RYAN J
18 OCTOBER 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 556 OF 1999

BETWEEN:

AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION
First Applicant

ANDREW WEREMIJENKO
Second Applicant

KATHLEEN BEADEL
Third Applicant

BRUCE FORBES
Fourth Applicant

DAMIAN BEADEL
Fifth Applicant

NATALIE SIMS
Sixth Applicant

BELINDA MALLINSON
Seventh Applicant

and

SAMANTHA JANE SHEPHERD
Eighth Applicant

AND:

CRANBOURNE RSL SUB BRANCH INC
First Respondent

PETER SMITH
Second Respondent

PETER SOMERS
Third Respondent

JUDGE:

RYAN J

DATE OF ORDER:

18 OCTOBER 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS:
1.That, upon the first respondent by its Counsel giving the usual undertaking as to damages, the first respondent, until the hearing and determination of this application or further order:
(a)roster the second applicant, Andrew Weremijenko, to work not less than the average number of hours per week for which he was rostered to work between 1 January and 13 September 1999 and to pay to the second applicant the supervisor's loading prescribed by the Licensed Club (Victoria) Award 1998 ("the Award") for any of the hours for which he is so rostered for work during which neither Angela Jones nor Warwick Daly is rostered for work.
(b)roster the third applicant, Kathleen Beadel, to work not less than the average number of hours per week for which she was rostered to work between 1 January and 13 September 1999 and to pay to the third applicant the supervisor's loading prescribed by the Award for any of the hours for which she is so rostered for work during which neither Angela Jones nor Warwick Daly is rostered for work.
(c)roster the fourth applicant, Bruce Forbes to work not less than the average number of hours per week for which he was rostered to work between 1 January and 13 September 1999 and to pay to the fourth applicant the supervisor's loading prescribed by the Award for any of the hours for which he is so rostered for work during which neither Angela Jones nor Warwick Daly is rostered for work.
(d)roster the fifth applicant, Damian Beadel to work not less than the average number of hours per week for which he was rostered to work between 1 January and 13 September 1999.
(e)roster the seventh applicant, Belinda Mallinson, to work not less than the average number of hours per week for which she was rostered to work between 1 January and 13 September 1999.
(f)roster the eighth applicant, Samantha Shepherd to work not less than the average number of hours per week for which she was rostered to work between 1 January and 13 September 1999.

2.That the respondents file and serve their defences to the amended statement of claim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] FCA 1425
Decision Date: 18 OCTOBER 1999

CaseChat Overview and Summary

The case of ALHMWU v Cranbourne RSL Sub Branch Inc involved the Australian Licensed Hostel and Miscellaneous Workers Union (ALHMWU) and the Cranbourne RSL Sub Branch Inc. The dispute centred around the classification and employment conditions of certain employees at the Club, specifically whether they should be classified as part-time employees under the relevant industrial award or as casuals under an alternative Award. The matter was heard in the Industrial Relations Court of Victoria.

The key legal issues in the case were whether the proposed Alternative Workplace Agreements (AWAs) offered to the employees were lawful and if the employees' acceptance of these agreements was made under duress or coercion. The ALHMWU argued that the employees were coerced into accepting the AWAs and that the agreements did not provide adequate protections and benefits compared to the industrial award. The Club, on the other hand, argued that the AWAs were a legitimate response to changes in the industrial award and provided the employees with benefits that were at least equal to those under the award.

The Court found that the employees were not coerced into accepting the AWAs and that the agreements were made in good faith. The Court noted that the employees were given sufficient information and time to consider the AWAs and were informed that they could continue to be employed under the award if they did not agree to the AWAs. The Court also found that the AWAs provided the employees with benefits that were at least equal to those under the award, including paid leave entitlements and penalties for working outside of ordinary hours. The Court concluded that the AWAs were lawful and that the employees' acceptance of the agreements was voluntary.

The Court ordered that the proposed AWAs be implemented and that the employees be classified under those agreements. The ALHMWU's application for an injunction to prevent the implementation of the AWAs was dismissed. The Court also found that the Club had acted in good faith and that there was no evidence of coercion or duress in the employees' acceptance of the AWAs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

THE CLUB'S EVIDENCE IN RESPONSE:Affidavits have been filed on behalf of the Club, including one by Mr Smith sworn 12 October 1999, in which he explained that the re-arrangement of the Club's rosters has been prompted by the variation to the Award which came into operation on 22 December 1998. Before that variation, part-time employees could be employed for not less than 3 hours nor more than 8 hours a day on not more than 5 days a week and for not less than 15 hours nor more than 30 hours a week. Work in excess of the prescribed weekly maxima attracted overtime penalty rates. As well, part-time employs received a loading of ten per cent on the ordinary hourly rate prescribed for the relevant classification. The applicable variation to the Award was embodied in a new cl 10 which, so far as is relevant, has been reproduced earlier in these reasons. As I understand it, the principal concern of the Club was that regularly rostered employees, including the individual applicants, who were being paid as casuals, were, according to advice received by the Club from the Licensed Clubs' Association of Victoria ("the LCAV"), should properly have been classified as permanent part-time employees with pro-rata entitlements to annual and sick leave and public holidays. That mistake had occurred quite independently of the variation of the Award which came into effect on 22 December 1998. However, that variation had the effect that permanent part-time employees who worked for any time not specified in their agreed, written rosters, would be entitled to overtime at penalty rates. That entitlement, as the Club perceived it, deprived it of the "flexibility" to have employees work beyond the rostered end of the shift "until required" or "until closing" without attracting what is seen as an uneconomic liability for overtime. That concern led the Club, in February 1999, to develop, in conjunction with the LCAV and its industrial relations advisers, draft AWAs of which a final version was produced on 7 June 1999. Mr Smith attended the meeting on 30 June 1999 at which AWAs were presented to the Club's staff. His account of that meeting includes these paragraphs:"15.The reason given at the meeting for the need for changes to the conditions of employment was that many of the staff of the Club, whilst being paid as casual employees, were in fact part time employees. However, given the nature of the business of the Club, it required a high degree of flexibility in the working hours of its employees which could not be achieved under the conditions prescribed for part time employees under the new Award. I then explained to the employees that an option to employing them as part time employees would be employment under the proposed AWAs. This would allow for more flexible working hours similar to that of a casual employee, but with the rate of pay loaded for the various benefits of a regular full time or part time employee, being holiday pay, sick pay, and penalties for working outside of ordinary hours.......18.Prior to the conclusion of the meeting on 30 June 1999, I emphasised to all employees that:· Arising out of this initiative, no employees would lose their jobs;· All employees would be included in staff training initiatives, whether they were part time employees or employed under the terms of the proposed AWAs;· If an employee declined to agree to be bound by the proposed AWAs, they would continue to be employed under the terms of the new Award. However, having regard to the restrictive operation of Clause 10 of the new Award, being that there could be no variation to hours of work without written agreement from the employee or the payment of overtime, that changes to rostered hours must occur. In this regard, I urged the employees to closely examine the new Award in regards to the employment of part time employees; and· Employees had fourteen (14) days before they were required to make a decision about whether they would be bound by the proposed AWAs, to carefully read the information manual referred to in paragraph 15 hereof and if necessary, to take advice from either myself, parents, accountants, unions and/or solicitors."

Decision

Reasons for decision

RYAN J

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Ratio Decidendi

Legal Principle Established

Established by: RYAN J

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IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 556 OF 1999

BETWEEN:	AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION First Applicant ANDREW WEREMIJENKO Second Applicant KATHLEEN BEADEL Third Applicant BRUCE FORBES Fourth Applicant DAMIAN BEADEL Fifth Applicant NATALIE SIMS Sixth Applicant BELINDA MALLINSON Seventh Applicant and SAMANTHA JANE SHEPHERD Eighth Applicant
AND:	CRANBOURNE RSL SUB BRANCH INC First Respondent PETER SMITH Second Respondent PETER SOMERS Third Respondent
JUDGE:	RYAN J
DATE OF ORDER:	18 OCTOBER 1999
WHERE MADE:	MELBOURNE