Natalie Eyre-Walker v Sunearth Pty Ltd

[1995] IRCA 317

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA  
VICTORIA DISTRICT REGISTRY

VI 1019 of 1995

B E T W E E N:

Natalie EYRE-WALKER
Applicant

A N D

SUNEARTH PTY LTD
Respondent

REASONS FOR DECISION

11 July 1995  PARKINSON JR  

This is my decision in relation to the preliminary matter of jurisdiction arising out of a submission by the respondent that the applicant was a casual employee precluded from bringing proceedings pursuant to S170EA as a result of the operation of regulation 30B(1)(d).

The applicant was employed at the respondent’s restaurant in September 1994, pursuant to an agreement called an Individual Employment Agreement.  The Agreement was expressed to operate until 1996. It provided for the express exclusion of the provisions of the State award during the currency of the Agreement. I am satisfied that the Agreement was an Individual Employment Agreement made pursuant to Section 9 of the Employee Relations Act 1992 (Vic), and that it complied with Section 10 of that Act in that it was in writing.

Both the respondent and the applicant signed the Agreement. The Agreement provided for the employment to be either on a “full time” or hourly basis. The evidence in the proceedings, although not expressed  in the actual Agreement, is that the applicant was initially employed on an hourly basis. For this she was paid an additional loading of 33 and 1/3 per cent on top of the ordinary hourly rate of pay, which was expressed in the Agreement as being $8.34 per hour.

On 26 September 1994, as a result of a meeting called by the manager of the restaurant, Mr Ho, I am satisfied that the applicant together with all of the other employees were informed that they would be required to agree to a reduction in their hourly rate of pay, together with a change of status from hourly to “full time”. The alternative was that they would lose their jobs.

I am satisfied that this “choice” was imposed upon the applicant by the respondent. The respondent says that the agreement was merely to accept a reduction in pay or lose your job.  The applicant says that it was explicit that full time employment, including consequent accrual of leave and other entitlements usually associated with full time employment, would occur as a consequence of the reduction of the wage rate.

I do not accept the respondent’s contention that the imposition of the wage reduction, some two weeks after entering into the Individual Employment Agreement, a written contract as to terms of employment, could occur other than in a manner consistent with the terms and conditions of that Agreement.  The Agreement provided expressly for the length of time of its operation and any variation thereto. I am of the view that in the absence of the payment of the loading to signify that the applicant was employed on an hourly basis, which might arguably be equated with a casual contract, the applicant was, pursuant to the Agreement, a full time employee.

It is not to the point that the applicant worked far in excess of 40 hours per week.  The evidence of Mr Ho was that the people whom he had designated as staff or full time in the kitchen also worked beyond 40 hours per week.

The provision of 40 hours per week is subject to the working of overtime, and it is not uncommon for overtime, at either reasonable or unreasonable levels, to be worked in many sectors of industry and in particular in the hospitality industry. There is nothing in the Agreement, nor is it apparent from any alleged variation or amendment of that Agreement, which would suggest that it was not open to the parties to arrange for the working of overtime. 

Despite raising with counsel questions as to the application of any State award, the court was not informed by the parties as to the content of the Restaurant and Catering Award (Vic),  an Award of the former Industrial Relations Commission of Victoria,  which may operate in relation to the employment by virtue of provisions of the Employee Relations Act 1992 (Vic). Counsel for the respondent declined to do so.  It is therefore difficult for the court to ascertain in any event, in the absence of any provision in the Employment Agreement for casual employment, and in the absence of any express or implied industry definition or criteria such as that which might be provided for in an award,  whether the applicant came within that class of employee known as a “casual”. 

The meaning of this term has not been legally defined.  It is a question of the facts and circumstances of any particular case. See in this regard the decision of Gray J in Australasian Meat Industries Employees Union v Sunland Enterprises Pty Ltd (trading as Sunland Wholesale Meats) (1988) 24 IR 467 at 473. In my view the circumstances of the industry in which the employment takes place would be relevant for ascertaining the appropriate indicia of casual employment. This material, which might be gleaned from the Restaurant and Catering Award (Vic), is not before me.

For counsel for the respondent to point to the terms of the written agreement and rely upon the respondent’s non-compliance with those terms as the basis for alleging that there was and remained a casual contract of employment, is certainly inventive but not persuasive. Further I do not accept the submission that because the document was not registered it was not effective other than as a contract of employment which was rescinded on 26 September 1994, when the new terms and conditions were imposed.  I am not satisfied that there was any recission of the agreement as opposed to merely a change in the nature of the employment, consistent with the  Individual Employment Agreement. Further, no terms varying or altering or even rescinding the Individual Employment Agreement were reduced to writing in accordance with the Agreement, or even on contractual terms, were put in evidence in such a manner that would enable the court to find that there was any certainty as to the terms of any alleged variation.

Finally and in conclusion, I am satisfied on the evidence of the applicant in relation to the meeting which occurred on 26 September 1994, that even had there been a recission of the Individual Employment Agreement at that time, the consideration for the reduction in her rate of pay from $11.00 per hour to $9.00 per hour,  was that her  employment was to be full time. I am satisfied that the parties in this proceedings are using the term “full time” as being synonymous with “permanent”, as opposed to “casual” employment.

For the reasons stated above, I find that the applicant is not an employee precluded by operation of regulation 30B(1)(d) from bringing an application pursuant to S170EA of the Industrial Relations Act 1988. The court has jurisdiction to hear and determine the application.

I certify that this and the preceding five (5) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.

Associate:
Dated:  11 July 1995

Solicitors for the applicant:  Palmer Stevens & Rennick
Counsel appearing for the applicant:                  Mr L Carter

Solicitors for the respondent:  Hercules Constan
Counsel appearing for the respondent:               Mr P McDermott

Date of hearing:  10 July 1995