Frank Tavella v Canterbury Hurlstone Park RSL Club Limited

[2014] FWC 556

[2014] FWC 556

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 739 - Application to deal with a dispute

Frank Tavella
v
Canterbury Hurlstone Park RSL Club Limited
(C2013/1649)

DEPUTY PRESIDENT SAMS SYDNEY, 23 JANUARY 2014

Dispute under the terms of an enterprise agreement - longstanding part time employee - hours of work restriction - request to increase availability - refusal to cooperate - Club's decision lawful and reasonable - terms of Agreement prevail over custom and practice - no demonstrable unfairness - mere inconvenience insufficient - Commission refuses to intervene - recommendations.

BACKGROUND

[1] Mr Frank Tavella has worked at the Canterbury Hurlstone Park RSL Club Ltd (the ‘Club’) for 28 years; firstly as a casual employee and more latterly (since 2009) as a part time Club Attendant Level 3. His terms and conditions of employment are governed by the Canterbury Hurlstone Park RSL Club Employee Enterprise Agreement 2011 - 2015 [AE885984] (the ‘Agreement’). Of particular relevance to this dispute is cl 15 of the Agreement, which is in the following terms:

’15.	Rosters
15.1	Rosters shall be changed in accordance with the operational needs of the Club.
15.2	Employees shall maintain flexible availability to ensure the operational requirements of the Club are met. Four (4) availability changes are permitted per year and must be approved by Rosters and/or Human Resources to ensure minimum hours are maintained.
15.3	Rosters shall be provided for all employees at least two (2) weeks in advance and will be posted in place and accessible to the Employees concerned.
15.4	Any change or changes to a roster for all Employees will occur:
15.4.1	by mutual agreement at any time; or
15.4.2	by giving twelve (12) hours notice when such a change or changes are necessary because of absences shortages of Employees, circumstances beyond the control of the Club; or
15.4.3	by giving seven (7) days notice for any other reason. The Club will make reasonable attempts in addition to posting the changed roster to notify Employees whose rosters are changed in this manner.
15.5	Requests by the Employee to vary a posted roster will be considered in accordance with the prevailing business requirements and may require an Employee to relinquish their shift or in case of sickness, apply for Personal Leave.’

[2] Since January 2009, Mr Tavella has only worked Monday and Tuesday evenings/nights 5:00pm-10:00pm. He also has full time, Monday-Friday employment in an administrative role. Mr Tavella, for reasons which will be discussed shortly, wants this arrangement to continue. However, a dispute arose in March 2013 when the Club decided that for operational reasons, Mr Tavella and a number of other employees, should make themselves more flexibly available for work on other shifts, while still ensuring that all part time employees continue to receive a minimum of eight hours work under the minimum engagement for part time employees’ clause in the Agreement (cl 14.3). Since that time, Mr Tavella has refused to change his current working arrangements.

[3] The Club has also offered Mr Tavella the option of converting back to a casual employee where he would be free to offer himself to work the shifts he chooses, but with no guarantee these shifts would be offered or that he would retain a minimum of eight hours a week.

[4] While this is the crux of the dispute, other related matters have arisen since March 2013 which were identified during the course of this proceeding. These include, inter alia, the following:

a) Mr Tavella has not worked at the Club since August 2013, having been off work for a stress related complaint said to have arisen from the Club’s insistence he offer more flexibility in his shift availability.

b) A worker’s compensation claim in respect to the above complaint was lodged and has been rejected. The rejection of this claim remains in dispute.

c) Mr Tavella was the subject of an investigation arising from a complaint by another employee for which he received a first written warning.

[5] Despite the dispute having arisen in March 2013, it was not until 31 July 2013 that the Union became involved when Mr Tavella’s Union Organiser, Ms Lilly Proctor (United Voice) attended the first of two meetings with Mr Tavella and the Club’s management representatives. The second meeting took place on 2 September 2013.

[6] As the dispute was unable to be resolved, Mr Tavella filed an application under s 739 of the Fair Work Act 2009 (the ‘Act’) to have the matter firstly, conciliated by the Fair Work Commission (the ‘Commission’) and, if necessary, arbitrated by the Commission. This process arises from the dispute settlement procedure under the Agreement (cl 46). Conciliation was unsuccessful. There was no jurisdictional point taken as to the Commission determining the dispute and to that end, both parties filed statements in the matter with a hearing taking place on 10 December 2013.

EVIDENCE

[7] In his statement, Mr Tavella said that he had started working at the Club as a casual employee in 1985. On 4 November 1999, the Club offered him the opportunity to convert from casual to part time employment. He took up this opportunity. In December 2008, he was told by the then Operations Manager, Mr Nathaniel Taylor, that the shifts he worked on Saturdays and Sundays would no longer be maintained. He was also told that he could maintain his Monday and Tuesday shifts. He was asked to provide an amended availability form which was tendered in the evidence.

[8] Mr Tavella was sent a letter by the Club on 4 March 2013. It reads as follows:

‘As you are now aware, the Club has recently implemented a new frontline roster template commencing from 5 March 2013.

In the past, the Club has been very flexible in its efforts to accommodate the needs of part-time employees as far as rostering is concerned.

However, in recent times, the operations needs of the Club have significantly changed, and a new frontline roster template will be implemented from 5 March 2013. This new rostering system may or may not suit times that you are available to work.

Under clause 14.3.2 of the CHP RSL Employees Enterprise Agreement 2011-2015, a part-time employee must be rostered on to work for no less than eight (8) hours each week.

As you have become a valuable member of our team, we would welcome a new weekly availability notification from yourself. However, if you are unable to adjust your current availability, the Club can no longer continue to offer you part-time employment because of the above requirement.

We ask that you update your availability on the TimeTeq system by Tuesday 12 March 2013. The alternative is to convert your employment status to casual, with your accrued leave balances being paid out.

If you wish to discuss further please contact your Department Head, Mary McTaggart Commercial Manager by Friday 8 March 2013 in the first instance on [number supplied].’

[9] Mr Tavella subsequently contacted Ms Paula La Rocca, the Club’s Human Resources Manager, to tell her that he was unable to change his availability. He then received the following letter on 19 March 2013:

‘This letter is following on from previous written correspondence dated 4 March 2013 regarding your current availability for work.

We confirm that you have either not contacted us with information as to your available working hours or are yet to finalise your new availability options after an initial discussion with Human Resources.

Given this, the Club is unable to offer you part time hours of work at this time in accordance with the relevant Enterprise Agreement that applies to your employment.

For the purposes of your ongoing employment and to ensure no loss of income, from 9 April 2013, your minimum hours will be met however may not comply with your limited availability [sic]. This will occur until such time that you contact us with details of your new available hours of work.

IMPORTANT - Payment for failure to attend such shifts will be made out of your current annual leave balance.

As you are a valuable member of our team, we would welcome a new weekly availability notification from yourself. We ask that you update your availability on the TimeTeq system by Tuesday 26 March 2013. The alternative is to convert your employment status to casual, with your accrued leave balances being paid out.

We are more than happy to discuss your options via telephone or in person. If you wish to discuss further please contact your Department Head, Michael Pullin, Gaming and Operations Manager in the first instance on [number supplied].’

[10] Mr Tavella claimed that he contacted Ms La Rocca again after receiving the second letter. He told her that while he did not want to convert from permanent part time to casual employment, he would be willing to start work earlier or work in other areas of the Club. He was told that the Club was not in a position to tailor arrangements for one employee. Mr Tavella received a further letter on 17 May 2013 in fairly similar terms to the letter of 19 March 2013, but it also included the following:

‘We would like to remind you that Clause 15.2 of the Enterprise Agreement that applies to your employment states that “Employees shall maintain flexible availability to ensure the operational requirements of the Club are met.” Please note that your current availability fails to comply with this condition of employment.

...

IMPORTANT - Shift swaps or relinquishes will not be approved by the Duty Managers. Additionally payment for failure to attend such shifts will be made out of your current annual leave balance.’

[11] On 5 June 2013, Mr Tavella received a letter requesting his attendance at a formal disciplinary meeting. He noted that another permanent part-time employee was required to attend. At the meeting, he received a letter of appointment identifying his employment as casual. He declined this offer. On receiving this letter, he called Ms Proctor of the Union. Ms Proctor arranged a meeting with Club management. This occurred on Wednesday 31 July 2013, with Ms La Rocca, Ms Mary McTaggart (Commercial Manager), Ms Proctor, Ms Rachelle Lovey (Union Delegate) and himself in attendance. Ms Proctor raised a number of issues in relation to the Club’s decision, but Ms La Rocca maintained that everyone’s roster needed to be changed and no accommodation could be made for Mr Tavella.

[12] Mr Tavella received a further letter on 1 August 2013. It was expressed, in part, as follows:

‘The purpose of the meeting was to finalise agreement on the Club’s requirements to review its roster, which began in February 2013. At this meeting we repeatedly discussed that your current availability fails to comply with the clause 15.2 of the Enterprise Agreement that applies to your employment states that “Employees shall maintain flexible availability to ensure the operational requirements of the Club are met.”

The Club’s requests, as outlined in correspondence since March 2013, is that you either review and open your availability or to transfer your employment to casual status. The rationale behind this requirement was to reduce the difficulty for our Rostering team to accommodate team members with highly restricted availabilities and also to ensure the equitable sharing of rostered hours with our entire workforce.

You declined either of these options as you feel they “do not suit you”. Your offer of only converting to casual on the proviso that the Club guarantee 8 hours of work each week was not approved as it is not consistent with the terms of casual employment. As such, we confirm that no agreement was reached at this meeting.’

The letter repeated that shift swaps would not be approved and that absences from rostered shifts would be deducted from his annual leave entitlements. Mr Tavella said that he was shocked at this approach.

[13] On 28 August 2013, Mr Tavella was given a letter requiring him to attend a meeting on Monday 2 September 2013. Ms Proctor attended this meeting with him, Ms McTaggart and Mr Brendan Golledge (Duty Manager). Despite explaining that he was being rostered for shifts that he had advised the Club he could not attend, he received a warning letter. Ms McTaggart had said that the Club would be moving to convert him to casual employment as it could not accommodate his limited availability. Mr Tavella claimed that the Club had never provided him with any genuine operational reasons for not accommodating his availability.

[14] In cross examination, Mr Tavella deposed that the reasons for being unable to change his working hours were that he had a full time job, he had family commitments and he was Treasurer of a community football club. Meetings of the football club took place every second Wednesday night. Thursday night was the family shopping night and Friday night was the day he usually went to his father’s home for dinner.

[15] Mr Tavella agreed that the meeting of 31 July 2013 had fallen on a Wednesday. He had not had any difficulty attending that meeting, as there was no meeting for the football club that week. He now conceded he was available every second Wednesday night. He added that while the soccer season only ran from March to August, the volunteer work required for the Club was year round.

[16] Mr Tavella acknowledged that he had worked Saturdays and Sundays in the past, but when the Club was restructured in 2008 he ceased working these days at the Club’s request. He now regarded Saturdays and Sundays as time for himself and his family. As he had worked for the Club for 28 years, he felt he had earned his family time.

[17] Mr Tavella confirmed that he had filed a workers’ compensation claim on 9 September 2013 for mild depression, high level anxiety and stress. He was sure that it was his job at the Club that was responsible for his illness. He believed that people were ‘breathing down his neck´ and felt that the dispute in relation to flexibility and availability was being turned into a performance management process.

[18] In re-examination, Mr Tavella deposed that he had never been asked by the Club as to what restrictions limited his availabilities. He could work up to ten hours per week, within his availability - that is from 5:00pm to 10:00pm on Monday and Tuesday. He was not dictating to the Club - he was just stating his availability. While there were shifts available in other operational areas of the Club, Mr Tavella said he had not been offered training in these areas. Such training could increase his ability to perform work in a range of areas within the Club.

[19] Mr Tavella conceded that he had been issued a warning in June 2013 related to excessive on the job talking and leaving an area untidy, though he felt that that this warning was ‘absolutely over top.’ He explained that he was usually rostered to leave work at 10:00pm and the area remained open until 11:00pm. If it had been such a big issue, he would have expected a Duty Manager to ask him to stay back to assist, particularly as there was another employee who finished one hour after him.

[20] In response to a question from me, Mr Tavella said that while the Staff Availability Form he completed in late 2008 identified 26 January 2009 as the start of that availability, for a short period he had worked only on Mondays until a Duty Manager had identified that he needed to do more work to maintain his status as a part time employee (8 hours minimum).

Ms Lilly Proctor

[21] Ms Proctor has been an Industrial Organiser for the Union for 17 years. The Club is within the area that she services her members. She attended two meetings in relation to the dispute between the Club and Mr Tavella on 31 July and 2 September 2013.

[22] In her written statement, Ms Proctor confirmed she told Ms La Rocca in the first meeting that Mr Tavella had received a letter proposing that the Club change his status from permanent part time to casual and that he did not consent to this. Ms La Rocca responded that the change was necessary for the needs of the business. Everyone’s rosters had been changed and only Mr Tavella took issue with it. Ms Proctor responded that the Club could not change Mr Tavella’s roster unilaterally. Ms La Rocca replied that the Club had attempted to ‘reason’ with Mr Tavella, but due to his availability, the decision had been made to make him casual. Ms Proctor noted that other employees had complained to the Union about this process.

[23] Ms Proctor said that Mr Tavella noted that another employee had not had his status changed. Ms La Rocca responded that the arrangement between Mr Tavella and the Club had been made in the past and the needs of the business had changed. Ms McTaggart expressed her disappointment with Mr Tavella for having reneged on an earlier understanding to ‘go casual’. Mr Tavella denied giving any such undertaking. She said Mr Tavella was lucky to have a permanent job. Ms Proctor suggested that the Club did not like the fact that Mr Tavella had another full time job. It was put that Mr Tavella would agree to change his employment status, if the Club agreed, in writing, to let him work the same days and hours. This was refused.

[24] Ms Proctor said the meeting on 2 September 2013 opened with a discussion of the Club’s requests that Mr Tavella change his employment status to casual. Ms McTaggart said that the CEO had agreed that the decision to change Mr Tavella’s employment status would not be reversed. When queried by Ms Proctor, Ms McTaggart said that she had not put to the CEO Mr Tavella’s proposal that he change his status to casual, subject to a guaranteed eight hours per week on Monday and Tuesday evenings.

[25] Ms McTaggart said that Mr Tavella had not called the Club to tell them that he would not be able to make his shift on 22 August 2013. Ms Proctor observed that the Club was aware of Mr Tavella’s availability, but continued to roster him on days on which he was not available. Mr Golledge replied that if Mr Tavella had called the Club, Management would have been able to find someone to replace him. Despite Mr Tavella saying that he was feeling stressed and ill, Ms McTaggart advised that the Club would be issuing a warning to him. Ms Proctor replied that an application would be made to the Commission. When Ms McTaggart asked Mr Tavella to sign the warning, he refused. As Mr Tavella was unwell, Mr Golledge said that he would organise someone to cover his shift.

[26] In cross examination, Ms Proctor was shown cl 14.3.2 of the enterprise agreement, which sets out that ‘A part time employee will be rostered to work no less than eight hours per week.’ Ms Proctor agreed that to remain a part time employee, Mr Tavella would need to work at least eight hours per week. However, the issue was that he was not able to do so. She agreed that the enterprise agreement ‘dictated’ whether Mr Tavella remained as a permanent part time employee or not. In re-examination, Ms Proctor agreed that Mr Tavella was available for the minimum hours required by the enterprise agreement on Monday and Tuesday nights.

For the Club

Ms Paula La Rocca

[27] Ms La Rocca has been employed by the Club since 9 December 2009 and has been the Human Resources Manager since 1 November 2011.

[28] In her statement, Ms La Rocca explained that the Club is staffed 24 hours per day, seven days per week, every day of the year. Mr Tavella had been offered part-time employment in 2009, when legislative changes altered the conditions of part-time employment. The offer made to Mr Tavella at the time was similar to that made to other employees and Ms La Rocca denied that Tavella had been ‘made’ to convert to part time employment.

[29] Ms La Rocca also noted that when a smoking ban had come into effect in 2007 and the Club had experienced a downturn in trade, it had not cut Mr Tavella’s hours. Other employees’ hours had been cut, but no redundancies were offered. While the Club’s general trade and revenue improved from 2010, this was not reflected in the food and beverage department and the food outlet in which Mr Tavella worked was closed.

[30] Ms La Rocca stated that the Club had commenced a review of its labour resources in February 2013. One component of this review was to audit the use of ‘supplementary labour resources’, which was said to include part time and casual employees. A modification of the roster template was made which resulted in changes to the regular hours of work for fulltime, frontline employees.

[31] On 6 March 2013, 16 employees were informed of the results of the review and requested to ‘open their availability’ or convert to casual employment. The Club relied on cl 15 of the Agreement as a basis for this request. After Mr Tavella failed to respond to this letter, a further letter was sent to him on 19 March 2013.

[32] Ms La Rocca understood that Mr Tavella made a number of phone calls to members of the Management team in response to these letters, despite having been directed to make his enquiries to the Club’s Gaming and Operations Manager. Ms La Rocca believed that Mr Tavella had become loud and aggressive in the course of some of these phone calls. He was reminded of the Club’s ‘Zero Tolerance Policy’, a copy of which he had signed in February 2012. He was told repeatedly of the reasons that the Club had made its decision and told of the two options from which he could choose: that he open his availability beyond the eight hours on Mondays and Tuesdays or that he convert to casual employment so that the Club did not need to give him shifts which were not required. Mr Tavella did not provide a reasonable excuse as to why he could not change his availability - just that it would not suit his lifestyle. He had never made a written request for flexible work arrangements.

[33] Ms La Rocca noted that while the majority of the Club’s trade took place in the evenings and on weekends, Mondays and Tuesdays (Mr Tavella’s preferred shifts) were the quietest trade evenings of the week. She believed that Mr Tavella setting out his availability on these days between 6 and 10pm was unduly restrictive. He was dictating the times he would work to the minute. No other employee was allowed to maintain such arrangements. Mr Tavella was currently only trained to work in food and beverage and on the reception door. It was not financially viable to train him in other areas of the Club due to his restricted availability. Ms La Rocca said that Mr Tavella was essentially asking the Club to change its approach to rostering a workforce of 200 people to suit one individual.

[34] Ms La Rocca insisted that it had been emphasised to employees that the Club did not intend to use the conversion of part time to casual as a basis for terminating their employment. All of the employees who were written to following the review had made arrangements in line with the options offered by the Club. She observed that none of the employees who converted to casual employment had been terminated. In any event, Mr Tavella was likely to be protected from unfair dismissal due to his employment on a regular and systematic basis over a long period of time.

[35] A further letter was sent to Mr Tavella on 17 May 2013, setting out that the Club could no longer accommodate his restricted availability and giving him two weeks notice of changes to be made to his roster.

[36] Mr Tavella was given a formal warning, which was confirmed by a subsequent letter, at a disciplinary meeting conducted on 11 June 2013 after there had been a complaint that he was not fulfilling his duties. Ms La Rocca referred to a grievance lodged by another employee which had resulted in an investigation of Mr Tavella and another employee. It was alleged that Mr Tavella had spent the last ten minutes of his shift eating, when he had been asked to clean up. When confronted about this the following day, he had responded in words similar to: ‘that’s how I work, I start at 6 and leave at 10’. When it was pointed out to Mr Tavella that he had been having issues with his performance while he was in negotiations about his shifts, he had become aggressive, saying that his full time job was stressful and that he came to the Club to relax and talk to patrons. Ms La Rocca emphasised that the investigation was conducted separately to the issue in relation to Mr Tavella’s shifts.

[37] Ms La Rocca claimed that after a further telephone discussion on 3 July 2013, Mr Tavella had agreed to convert to casual employment. A letter of appointment setting out this out was sent to him. However, Mr Tavella had apparently contacted Ms Proctor not long after this. A meeting was organised with Ms Proctor, Mr Tavella and the Club and Mr Tavella withdrew his offer to convert to casual employment. Ms Proctor refused to negotiate with the Club and stated that an unfair dismissal claim would be lodged with the Commission. A further letter was provided to Mr Tavella on 1 August 2013, to which he did not respond.

[38] The Club held a disciplinary meeting with Mr Tavella on 2 September 2013 in relation to his failure to attend two shifts for which he had been rostered on consecutive Thursdays. A further formal warning was issued to him on the basis that he had failed to follow the leave policy requiring him to notify the Duty Manager of any absences.

[39] Ms La Rocca said that the Club received a workers’ compensation claim from Mr Tavella on 9 September 2013. The claim was ultimately rejected by the Club’s insurance company on 23 September 2013 on the basis that:

‘Your employees’ injury is wholly or predominantly due to reasonable action taken or proposed to be taken by you, the employer, with respect to discipline: Section 11A (1) of the Workers Compensation Act 1987 (the 1987 Act)’

Ms La Rocca noted that while Mr Tavella maintained his full time job, he has not returned to work at the Club since that time.

[40] Ms La Rocca said that the Club had received a Notice of Listing from the Commission for conciliation of the unfair dismissal proceedings brought by Mr Tavella. She said the conciliator had ‘dismissed’ the application as there was no basis for the claim. Mr Tavella’s Union representative had then said that they intended to file a ‘general dispute claim’.

[41] Ms La Rocca said that the Club had corresponded with Mr Tavella and other employees in August 2006 concerning an intention to consult with employees as to operational changes. She cited this example as evidence that the Club had a history of consulting with its employees.

[42] In cross examination, Ms La Rocca advised that the Club reviewed the roster approximately every four years. In recent times, the gaming operations of the Club had become more labour intensive, but the employee hours required in food and beverage had declined. The recent review had taken into account the Club’s patronage, turnover, sales and staffing. This was the largest restructure that the Club had undertaken in the time that she had worked with the Club. The CEO, Mr Thomas, had been directed by the Club’s Board to implement a review of the roster and trade patterns.

[43] Ms La Rocca agreed that while Mr Tavella’s availability technically ensured his minimum part time hours, his restricted availability did not meet the operational requirements of the Club. She noted that the Club would occasionally roster other employees contrary to their availability, if due notice was given. One employee had an Individual Flexibility Arrangement (IFA) approved which was designed to cater for her carer’s responsibilities. This person was not rostered contrary to her availability as set out under the IFA.

[44] Ms La Rocca stressed that the availability form filled out by employees was a request. It was not a guarantee to part time or casual employees that it would be strictly adhered to. The letter of appointment given to an employee set out that the Club operated 24 hours a day, seven days a week, every day of the year. Trade at the Club was susceptible to a number of variables, including weather, peak periods and special events. If an employee called in sick, a number of off roster staff working in the same department would be contacted to request if they could come in.

[45] Ms La Rocca claimed that Mr Tavella had been asked to provide further details as to why he could not change his availability. Nothing was forthcoming. She agreed that she had not explained to him that he could request flexible work arrangements in accordance with the Act. If possible, the Club would act on a request made by an employee. She said Mr Tavella had not sought a positive resolution. He had merely refused to engage with the Club.

[46] Ms La Rocca emphasised that the reasons set out by Mr Tavella were not consistent with the right to request flexible work arrangements under the Act. He had not provided any request in writing. She denied that no operational reasons had been put to him as to why his availability could no longer be accommodated. She believed his refusal was unreasonable.

[47] Ms La Rocca clarified that the warning issued to Mr Tavella in June 2013 arose from his failure to complete his duties, rather than his leaving at 10pm. He should have cleaned his area, ensured that customers were being served and checked with other employees to see if they required assistance. She agreed that employees were encouraged to chat with patrons, but not with each other. As there was always something to do at the Club, employees were expected to contact their immediate manager, if trade was slow. Mr Tavella could have done cleaning work elsewhere in the Club. Neverthelesss, the warning issued to Mr Tavella was irrelevant to the current proceedings. It had been raised by Mr Tavella in conciliation. She denied that the warning represented an attempt to performance manage Mr Tavella out of the organisation. Similar requests for feedback on performance were made every time a complaint was received.

[48] Ms La Rocca agreed that she had been aware that Mr Tavella would not attend his Thursday shifts as rostered. However, the letter sent to him stated that the Club would no longer be accommodating his limited availability and that he would be rostered when required. He had also been rostered on Monday, a day he could work. Mr Tavella had put in his workers’ compensation claim three weeks later. As a result, the Club had had to hire more staff.

[49] Ms La Rocca said that the Club had 70 or 80 frontline staff, of which ten to twelve were casual employees and thirty or forty were part-time. Whether an employee was part time or casual was dependent on their availability. She agreed that there were other employees who were available on only two days per week. One or two of these were still part time. They had undertaken the same process as Mr Tavella. Some of these employees had opened their availabilities and some were able to work in other parts of the Club. She considered that it would be unfair for the same staff to do the busiest shifts all of the time - those shifts should be shared among the staff.

[50] Ms La Rocca explained that it was not feasible for the Club to train Mr Tavella in gaming as all of the shifts in that area were longer than his stated availability. Attempting to redeploy Mr Tavella to other areas would give rise to similar problems.

[51] In re-examination, Ms La Rocca agreed that where an employee made a request for flexible work arrangements in relation to carers’ responsibilities, that the employee would be advised that the request should be made in writing, in accordance with the Act. A request based on the scheduling of an employee’s favourite television show would obviously not be treated seriously. If Mr Tavella had put that he wanted to spend time with family members and his volunteer commitments with a football club, then there would have been a discussion as to how to accommodate his availability. However, Mr Tavella had never made such a request. He had just refused to change his availabilities.

[52] Ms La Rocca explained that the Club had faced new regulatory and trade pressures since Mr Tavella had started working eight hours per week in 2009. These included regulatory measures related to smoking, gaming and mandatory shutdowns. Changes to the industrial instruments under which he was covered were also relevant. She also believed that the Club had become more professional in its approach to rostering.

Mr Dean Thomas

[53] Mr Thomas has been employed by the Club since 1992 and has been CEO since March 2003. In his statement, Mr Thomas said that the Club operated in an area with a high density of clubs. New South Wales gaming laws prevented the Club from increasing revenue by adding more poker machines. He also noted that the Club had suffered a downtown in trade when the smoking ban was introduced in 2007. The Club had responded by attempting to cut a number of overheads, including labour. Trade had begun to improve from 2010. Obviously, the busiest trade occurred on weekends and at night.

[54] Mr Thomas deposed that he had directed the Senior Management Team to further review the Club’s operations in mid 2012. Such ‘holistic’ reviews were conducted every ‘so many’ years when required by changes in business conditions or trading hours. He emphasised the vulnerability of the Club’s trade to regulatory changes. The review of supplementary labour was delegated to Ms La Rocca in her capacity as Human Resources Manager. The decision to align rostered hours to trade requirements emerged from the results of this review and a new template roster was developed in late 2012. The regular rosters of all frontline employees were changed.

[55] Mr Thomas said that Ms La Rocca had advised him that there were approximately twenty employees whose availability was no longer consistent with the Club’s business requirements. She recommended that she deal with each of these employees individually. Having done this, she advised him that mutual arrangements had been made in relation to all but one of the employees (Mr Tavella).

[56] Mr Thomas considered it unfair for Mr Tavella to dictate his hours of work when all the other employees had complied with the requirements in cl 15.2 of the Agreement. Mr Tavella had been made aware of the business requirements that necessitated the change. All employees had been told that termination of employment was not intended by the Club. He believed Mr Tavella’s refusal was unreasonable, especially in light of the fact that he had not cited a reason covered by the National Employment Standards (NES). Mr Thomas was satisfied that the actions taken, pursuant to his direction, complied with the Club’s obligations under the Agreement.

[57] Mr Thomas claimed that he had been told that Mr Tavella had contacted different managers of the Club in the hope of achieving a different result. He also noted that Mr Tavella’s workers’ compensation claim had been rejected by the Club’s insurer on the basis that the action taken by the Club was ‘due to reasonable action’.

[58] In cross examination, Mr Thomas explained that the reason Ms La Rocca had given for the 20 employees’ availability being inconsistent with the new roster, was that it would have been difficult to maintain these employees’ part time status.

[59] Mr Thomas said that he was not aware of specific dates and times of meetings between Mr Tavella and management. However, he was happy with how the process had been conducted. Ms La Rocca had kept him appraised of the process every few weeks during the course of general HR meetings. He had not directed Ms La Rocca to hold a meeting with Mr Tavella to resolve the dispute and had not directed Ms La Rocca on specific actions. He was aware that the meeting which took place in June was at the request of the Union. When and if such a meeting would be called by the Club would depend on the circumstances of the dispute with an employee.

[60] Mr Thomas accepted that the availability of Mr Tavella had been approved by an officer of the Club in 2009. He agreed that it was possible for Mr Tavella to work the minimum required eight hours if he worked ‘one hundred percent’ of his availability. He observed that not all staff are rostered onto one hundred percent of their availability. Mr Thomas emphasised that staff do not ‘own’ shifts as this would not be fair to other staff.

[61] Mr Thomas said that the changes to the rosters of the 15 or 20 employees identified by Ms La Rocca were not made for a specific operational reason, but for reasons of equity. He agreed it was fair to acknowledge an individual’s situation, but the primary concern was the needs of the business; being the ability to roster employees according to trade. Other considerations included staff confidence in the rostering process and fairness in that process. Individual concerns are taken into account and the Club would seek to accommodate them, where possible.

[62] Mr Thomas believed that where an employee had specific caring or lifestyle requirements, they should firstly raise the issue with their immediate manager. This would sometimes be a simple process, but if it resulted in significant changes to the roster, it would have flow on effects to other employees. This would need to be taken into account. He agreed the Club encouraged a consultative approach. He was confident that Mr Tavella had had the same operational reasons put to him as the other affected employees. The Club would have agreed to the Mr Tavella’s availability, if he had agreed to become a casual employee.

[63] In re-examination, Mr Thomas agreed that he viewed the operation of the Club from a strategic perspective in his capacity as CEO. He said that if the Club was required to only take into account the needs of individual employees when drawing up a roster, there would be ‘a hundred different rosters and it just wouldn’t work’. The Club would have to shut down when nobody was available.

SUBMISSIONS

For the applicant

[64] In written submissions, Mr M Dusevic noted that Mr Tavella has been working the same set roster since January 2009. This roster had been agreed with Mr Taylor, his Manager at the time. In 2013, when the Club had corresponded with Mr Tavella requiring him to change his availability, it had never raised any operational reasons or changes that made it necessary for him to do so. Mr Tavella had repeatedly responded to correspondence from the Club by affirming that he could not change his availability due to family and personal commitments. The Club did not seek clarification of these issues. When the Club had refused to engage with him, Mr Tavella had invoked the dispute resolution procedure under the Agreement.

[65] Mr Dusevic submitted that it was a requirement for the Club to clearly set out the genuine business grounds in refusing a request for flexible working arrangements. Mr Tavella was 55 years old and was entitled to access flexible working arrangements under the Act (s 65).

[66] Mr Dusevic claimed that the issuance of two warnings to Mr Tavella, after the Club had intentionally rostered him onto shifts which it knew he could not work, was ‘invalid and nonsensical’.

[67] In further oral submissions, Mr Dusevic said that Mr Tavella was meeting his minimum requirements to work part time. He submitted that the ‘genuine operational needs’ must be relevant to specific changes and operations. No specific reasons had been provided as to why Mr Tavella could not continue to be rostered on his current roster. There had been no meaningful discussion in relation to his commitments and the Club’s requirements.

[68] Mr Dusevic observed that Mr Tavella had been employed for 28 years. While he was highly skilled and could be trained in other areas, no additional training had been offered. He had never previously been subject to any disciplinary action, yet he had been subject to two formal warnings in the last ten months.

[69] Mr Dusevic noted that no other staff had complained about the rostering arrangements for Mr Tavella. The workforce as a whole was highly flexible and other staff were generally pushing for more shifts. It was admitted by the Club that it could employ other staff to fulfil specific requirements.

[70] Mr Dusevic claimed that the Club had not really asked Mr Tavella why he could not work on days outside of his stated availability. The correspondence sent to him required him to contact the Club by telephone and these conversations went nowhere.

[71] Finally, Mr Dusevic drew my attention to cl 15.2 of the Agreement, which is as follows: ‘Four availability changes are permitted per year and must be approved by the rosters human resources department.’ Mr Dusevic said Mr Tavella was not dictating his shifts - he was adhering to his previously agreed availabilities. This was not unreasonable for an employee of 28 years standing.

For the respondent

[72] In written submissions, Mr G Christodoulou submitted that Mr Tavella was not eligible to make a request pursuant to s 65 of the Act in that he had not turned 55 until 26 June 2013, well after the dispute had arisen. Moreover, no request had been made in writing. Even if it could be said that Mr Tavella had made a proper application, pursuant to s 65 of the Act, the Club had complied with ss 65(4) and (5) of the Act.

[73] Mr Christodoulou also submitted that the employment of Mr Tavella was governed by the Agreement at all times. The Club had complied with clause 15 of the Agreement, which deals with rostering.

[74] In oral submissions, Mr Christodoulou claimed that the change undertaken by the Club was not a major workplace change. Therefore, the Club was not required to comply with clause 44 and 45 of the Agreement. In light of my comments during the proceeding, Mr Christodoulou accepted that s 65 did not apply to this dispute. The clause that was relevant to this dispute was clause 15.2.

[75] Mr Christodoulou drew my attention to the fact that the business operated 24 hours a day, seven days a week. It was reasonable for an employer to refuse to accept an employee dictating their hours in these circumstances. He also noted that Mr Tavella’s evidence showed that he was actually available every second Wednesday. Mr Christodoulou observed that if late night shopping were to be accepted as a reason for non-availability on Thursdays, then there would be no staff available to work at those shops. While Mr Tavella wanting to visit his father on Fridays was understandable, there was no reason why he could not do so on other days of the week.

CONSIDERATION

Preliminary matter

[76] In written outlines of submissions, both parties referred to s 65 of the Act. That section is expressed as follows:

‘65 Requests for flexible working arrangements

Employee may request change in working arrangements

(1) If:

(a) any of the circumstances referred to in subsection (1A) apply to an employee; and

(b) the employee would like to change his or her working arrangements because of those circumstances;

then the employee may request the employer for a change in working arrangements relating to those circumstances.

Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.

(1A) The following are the circumstances:

(a) the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;

(b) the employee is a carer (within the meaning of the Carer Recognition Act 2010);

(c) the employee has a disability;

(d) the employee is 55 or older;

(e) the employee is experiencing violence from a member of the employee’s family;

(f) the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.

(1B) To avoid doubt, and without limiting subsection (1), an employee who:

(a) is a parent, or has responsibility for the care, of a child; and

(b) is returning to work after taking leave in relation to the birth or adoption of the child;

may request to work part-time to assist the employee to care for the child.

(2) The employee is not entitled to make the request unless:

(a) for an employee other than a casual employee—the employee has completed at least 12 months of continuous service with the employer immediately before making the request; or

(b) for a casual employee—the employee:

(i) is a long term casual employee of the employer immediately before making the request; and

(ii) has a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

Formal requirements

(3) The request must:

(a) be in writing; and

(b) set out details of the change sought and of the reasons for the change.

Agreeing to the request

(4) The employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request.

(5) The employer may refuse the request only on reasonable business grounds.

(5A) Without limiting what are reasonable business grounds for the purposes of subsection (5), reasonable business grounds include the following:

(a) that the new working arrangements requested by the employee would be too costly for the employer;

(b) that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;

(c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;

(d) that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;

(e) that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

(6) If the employer refuses the request, the written response under subsection (4) must include details of the reasons for the refusal.’

[77] As I informed Mr Dusevic and Mr Christodoulou during the proceeding, I do not see how s 65 of the Act can be relied on by either party. Firstly, it is obvious that the employee had not written to the Club (s 65(3)) seeking to retain his rosters and giving reasons why he sought to do so. Consequently, none of the other provisions of s 65 come into play.

[78] Secondly, s 65 is headed ‘Employee may request change in working arrangements.’ Self evidently, it was not Mr Tavella which requested a change in rostering; he wanted the status quo maintained. Rather, it was the Club which requested Mr Tavella broaden his availability. That said, I do not consider that s 65 was intended to comprehend circumstances where an employer seeks to alter the working arrangements of its employees based on its business needs, operational requirements, or according to the terms of an industrial instrument.

Relevant considerations

[79] In my view, this dispute raises a number of interrelated issues such as:

● the express terms of the enterprise agreement;
● the Club’s right to manage its business as it sees fit, subject to the caveats of fairness and reasonableness towards employees;
● the needs of the Club for broader employee availability to meet operational requirements; and
● whether Mr Tavella’s reasons for not wanting to change his hours of work are reasonable and should be accommodated by the Club.

The terms of the enterprise agreement

[80] The Club relies on clause 15 of the Agreement, to support a purported legal right to request an employee ‘maintain flexible availability to ensure the operational requirements of the Club are met.’

[81] Mr Dusevic, correctly in my opinion, did not quibble with the effect of cl 15.2 of the Agreement. He raised broader issues of fairness to Mr Tavella and custom and practice and a failure of the Club to demonstrate a change in operational requirements. The terms of cl 15.2 are clear and unequivocal. They are not words which are vague, unambiguous, uncertain or subject to more than one meaning. Viewed in this context, the broader issues advanced by Mr Dusevic require close analysis. I will come to these matters shortly.

[82] Much reliance was placed by Mr Dusevic on the availability request completed by Mr Tavella in late 2008 to apply from January 2009. In my view, the significance attached to this document, in particular the apparent assertion that it represented a binding agreement between the Club and Mr Tavella, misunderstands both the purpose of the document and its legal standing.

[83] To my mind, availability requests such as this, are akin to expressions of interest. They neither bind the parties to their terms or represent a legally enforceable agreement between them. They are a useful administrative adjunct to the Club’s understanding of when an employee might be available for work and when they are not. The fact that four availability requests are permitted each year demonstrates the point that availability requests are variable and subject to change depending on changed circumstances. Such a request is certainly not a guarantee that it will be able to be accommodated in every case, in perpetuity. Nor can they be held to demonstrate an agreement which remains in force irrespective of changed business conditions. Importantly, however, the request cannot override the express provisions of the legally enforceable contract of employment; namely, the Agreement.

Managerial prerogative

[84] In addition, the Club, no doubt, invokes its right to manage its business as it sees fit; that is, to exercise managerial prerogative in conducting its business, including the rostering arrangements of its employees. The right of an employer to manage its business without interference, is a well known and long held principle; See: Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales (1984) 295 CAR 188 and Re Cram, ex parte N.S.W. Colliery Proprietors Association Limited (1987) 163 CLR 117.

[85] Of course, that right may be open to challenge when an employer, proposing to enforce such a right, requires an employee to comply with unlawful or unreasonable directions. I do not understand Mr Dusevic to argue with the legality of the Club’s directions, but rather, his submission is that the Club is acting unreasonably towards Mr Tavella by altering his existing roster.

[86] Lawler VP, set out the contemporary state of the law in respect to managerial prerogative in Construction, Forestry, Mining and Energy Union v HWE Mining Pty Limited[2011] FWA 8288. I cite a lengthy passage from His Honour’s judgement below (including a reference to rostering at para [10]), which I respectfully adopt. At paras [7]-[12], His Honour said:

‘[7] The law recognises that there is an area of managerial prerogative in which an employer has the right to make decisions on how to manage their business. In Re Cram, ex parte N.S.W. Colliery Proprietors Association Limited  the High Court observed that “many management decisions, once viewed as the sole prerogative of management, are now correctly seen as directly affecting the relationship of employer and employee”. That case was concerned with whether the jurisdiction of the federal tribunal (under the then legislation based on s.51(xxxv) of the Constitution) to make an award in settlement of a dispute was constitutionally limited so as to prevent any interference with managerial decisions. The High Court rejected any such limitation, observing:

“... we reject the suggestion, based on the remarks of Barwick C.J. in Melbourne & Metropolitan Tramways Board, that managerial decisions stand wholly outside the area of industrial disputes and industrial matters. There is no basis for making such an implication. It is an implication which is so imprecise as to be incapable of yielding any satisfactory criterion of jurisdiction: see Federated Clerks Union. Indeed, the difficulty of making such an implication is accentuated by the fact that the extended definition of ‘industrial matters’ proceeds on the footing that many management decisions are capable of generating an industrial dispute.

These considerations indicate that the objection voiced by O’Connor J. in Clancy to the regulation and control of business enterprises by industrial tribunals is not a matter that goes to the jurisdiction of the tribunals. Rather it is an argument why an industrial tribunal should exercise caution before it makes an award in settlement of a dispute where that award amounts to a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted.”

(footnotes omitted)

[8] Subject to express terms, there is an implied term in the contract of employment that the employee will comply with the lawful and reasonable directions of the employer. This is one of the principal ways in which the employer’s managerial prerogative arises from a legal perspective and forms the basis on which an employer may be said to have a right to make and vary policies that employees are required to observe.

[9] As was observed by the Full Bench in Woolworths v Brown:

“[24] In the modern era employers face an often bewildering array of statutory obligations in relation to matters such as health and safety, discrimination, taxation, trade practices and fair trading to mention the most obvious examples. Employers face potential liability arising from their common law duty of care to their employees and to members of the public. Employers may be subject to contractual obligations that require them to conduct their business in a particular way or to meet particular standards or observe particular constraints. For these reasons it is entirely reasonable, and often necessary, for employers to put in place policies, with which employees must comply, to facilitate the employer’s compliance with its obligations and duties.”

[10] However, managerial prerogative in relation to employees (including the employer’s right to make and vary policies that employees are required to observe) is subject to legal constraints. It may be constrained by statute or the terms of an award. It may also be constrained by the terms of a contract of employment or a statutory agreement that the employer chooses to make. For example, an enterprise agreement might provide that all work must be carried out in accordance with a roster pattern specified in the agreement. In that example, unless the agreement also confers a right on the employer to vary the roster pattern, the employer has bound itself not to require employees to work a different roster pattern. In particular, an employer can bind itself in a statutory collective agreement not to change a policy or policies without, for example, the agreement of a relevant union or a majority of employees.

[11] If an employer’s exercise of managerial prerogative is not prevented by statute, an award, a statutory agreement or the contract of employment, the basis for a tribunal such as Fair Work Australia, acting as an arbitrator of a dispute, interfering with what would otherwise be a lawful exercise of managerial prerogative (such as the making or varying of a policy which employees are required to observe) was laid down Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales (XPT case):

“It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable. The test of injustice or unreasonableness would embrace matters of safety and health because a requirement by an employer for an employee to perform work which was unsafe or might damage the health of the employee would be both unjust and unreasonable. The ACTU submitted to us that we should apply the test as to whether the demand of the employer was just and equitable having regard to all the circumstances. It is our view that under any given set of facts the test suggested by the ACTU would not lead to a different decision from the test which the Commission has applied over time. Accordingly in reaching our decision we have approached the matter from the point of view of making a judgement whether the request of the SRA that the XPT be manned by one man is unjust or unreasonable.”

[12] I proceed on the basis that an exercise of managerial prerogative will not be unreasonable in this sense if a reasonable person in the position of the employer, could have made the decision in question.

[footnotes omitted]’

The Club’s operational requirements

[87] Perhaps Mr Dusevic’s most compelling argument was that the Club had not demonstrated any real operational requirements for altering Mr Tavella’s roster. However, in one sense, it is axiomatic that by making himself more available for shifts other than Mondays and Tuesdays, the Club effectively increases its employees’ flexibilities and thereby increases its efficiency and its effectiveness. In circumstances such as this it will often be difficult to actually specify and quantify the extent of operational requirements necessary to justify the change the Club seeks. As Mr Thomas conceded, the Club’s evidence on this point was general (a matter of equity), rather than specific. Even so, I agree with Mr Thomas that ‘employees don’t own shifts’.

[88] However, the Club was on strong grounds in arguing that if it were to agree to Mr Tavella’s request - effectively dictating when he would and would not work - it would be entirely open for other employees to insist on the same demands. While Mr Dusevic correctly objected that there was no direct evidence that such an outcome would occur, or was even likely, it seems to me that it would not take very long for everyone in the Club becoming aware that Mr Tavella had received special and preferential treatment. To suggest other employees would not seek the same consideration is unrealistic. To my mind, such an outcome would be unworkable and illogical.

Mr Tavella’s reasons for refusing to offer broader shift availability

[89] The Club maintained that the first time it actually was made aware of the reasons why Mr Tavella could not work on other nights of the week or the weekend, was during his evidence in the proceeding. This was despite seeking to engage with him over some months as to his personal situation. I accept the evidence of Ms La Rocca in this respect and express my disappointment that Mr Tavella’s only answer for some months was that he had agreed with the Club in 2009 as to his hours of work and he would not be forced to change them.

[90] Nevertheless, to his credit, Mr Tavella did not seek to ‘gild the lily’ as to the reasons why he could not work outside Monday and Tuesday nights. These were:

(a) Every second Wednesday he had a board meeting of a local community soccer group, which he was heavily involved with;

(b) Thursday was ‘late night’ shopping with his wife;

(c) On Fridays, he had dinner with his elderly father, which his father prepared; and

(d) The weekends were reserved for his family.

[91] For me to be convinced that these reasons explain why Mr Tavella could not offer himself for a broader shift availability, I would need to be satisfied that his reasons involved a pressing domestic or personal circumstance, usually beyond the employee’s control. Ordinarily, mere discomfort or inconvenience would not be sufficient.

[92] Of course, the Club was not intending to roster Mr Tavella on day shifts Monday to Friday, when he was working at his other job. It had clearly taken that reason into active consideration. Ms La Rocca readily conceded that other employees’ personal or work circumstances were taken into account, such as students who are required to attend university at certain times or employees with family or childcare responsibilities. Mr Dusevic sought to rely on Ms La Rocca’s evidence as demonstrating a different treatment afforded to Mr Tavella. I disagree.

[93] It is sensible for an employer to take into account and accommodate an employee’s requests wherever possible. However, the example of the university student or the parent with carer’s responsibilities are not the same as mere convenience or comfort. When viewed objectively with Mr Tavella’s reasons, I am not persuaded Mr Dusevic’s comparisons are valid in this respect.

[94] Firstly, at the very least, Mr Tavella could have extended his availability to every other Wednesday night and his other soccer related community activities are not all year round, as he conceded.

[95] Secondly, I rather thought, with the huge extension of shop trading hours in recent years, that the traditional Thursday night and Saturday morning shopping was largely a phenomenon of the past.

[96] Thirdly, Mr Tavella dines with his elderly father on a Friday night. However, even this reason begs the question as to why must he dine with his father on a Friday night only. Surely, the needs of an elderly parent will vary from week to week, day to day. Dining with his father on the same night every week may be a matter of habit, but I do not understand, nor could Mr Tavella explain, why this arrangement could not be variable. Moreover, I note from Mr Tavella’s evidence, that it is actually his father who prepares the meal for him and his sisters.

[97] Fourthly, it is self evident that most Monday to Friday workers, particularly with a second job, such as Mr Tavella, will greatly value the weekend time to be with family and friends. However, we don’t all enjoy this luxury. Mr Tavella is not ‘Robinson Crusoe’ in this regard. The reality is that the Club does not intend to roster Mr Tavella all weekend and every weekend. I accept their undertaking in this respect.

[98] For my own part, I am not satisfied that Mr Tavella’s reasons for not offering greater shift availability are of such significance as to prevent him from offering any compromise as to availability on other nights of the week. Nor do I think it unreasonable that Mr Tavella should be less rigidly conditioned and inflexible to life’s ordinary demands on one’s personal time and family life. In addition, I note that Mr Tavella has previously worked on Saturdays and Sundays, at times other than Monday and Tuesday and as a casual for many years. His current arrangements are only of relatively recent origin (2009).

[99] At this point, I note that Mr Tavella has been off work, i.e., not working any shifts at the Club, since August 2013, claiming he has been stressed and harassed by the Club’s insistence on his changing shifts and the disciplinary action taken against him. He has lodged a stress related workers’ compensation claim for these reasons, which has been rejected. I make a number of obiter observations about this matter, in so far as its limited relevance to this dispute.

[100] Firstly, in view of the Club’s early attempts to positively engage with Mr Tavella and his complete lack of any cooperation, it is difficult to see how the Club’s actions amount to harassment.

[101] Secondly, Mr Tavella was not the only employee subject to this change, but appears to be the only one not willing to cooperate.

[102] Thirdly, the Club’s directions to Mr Tavella were both lawful and reasonable. His refusal to comply with the Club’s directions left it with little alternative but to initiate disciplinary action.

[103] Fourthly, the Commission was provided with no medical evidence of Mr Tavella’s alleged work-related stress condition.

[104] Fifthly, it is a little difficult to reconcile Mr Tavella’s continued full time employment in another job, with his inability to work two nights in an environment where has worked for 28 years. I note Ms La Rocca’s evidence that Mr Tavella had told her his full time job was stressful and he worked at the Club to relax and talk to patrons.

SUMMARY

[105] In my opinion, unless there is a demonstrable unfairness impacted on an employee by the term/s of their enterprise agreement, such as to justify the retention of an existing custom and practice, then the clear terms of the Agreement must prevail. Regrettably, while I acknowledge that Mr Tavella is unhappy with, and will be inconvenienced by the Club’s decision, I cannot elevate the effects on him of what the Club seeks, to the level of a demonstrable unfairness.

[106] Accordingly, given the unequivocal terms of the Agreement, the Club is entitled by the provisions of cl 15 to insist that Mr Tavella make himself available for shifts other than on Monday or Tuesday evenings/nights.

[107] Notwithstanding that I would not interfere with the Club’s decision, I recommend that Mr Tavella’s rostered shifts be fairly balanced with other employees and as far as possible the Club seek to accommodate his preferred option of working Monday and Tuesday evenings/nights.

[108] I further recommend that Mr Tavella positively cooperate and engage with the Club as to his future rosters. Should he do so, I think it appropriate the Club remove from his personal file any disciplinary letters arising from the current dispute.

[109] These proceedings are otherwise concluded.

DEPUTY PRESIDENT

Appearances:

Mr M Dusevic for the applicant

Mr G Christodoulou for the respondent

Hearing details:

2013

Sydney:

10 December.

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