WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. No. CR487 of 1986. Between Shop, Distributive and Allied Employees' Association of Western Australia, Applicant and Charlie Carter Pty Ltd, Respondent. Before Mr Commissioner O.K. Salmon. The 2nd day of December 1986. Mr T.M. Bishop appeared on behalf of the Applicant. Mr R.H. Gifford appeared on behalf of the Respondent. Mr P. Cook, by leave, appeared on behalf of the Confederation of Western Australian Industry (Inc). Reasons for Decision. THE COMMISSIONER: This matter is before me for hearing and determination pursuant to section 44 (9) of the Industrial Relations Act 1979. The Shop Distributive and Allied Employees Association of Western Australia (the union) asks that an order issue in respect of conditions regulating the employment of casual employees engaged by Charlie Carter Pty Ltd (the company) and the restoration of the practice whereby, subject to employee consent, the company deducts money equivalent to union subscriptions from the wages of its employees and forwards this money to the union. I think it is as well to mention at this stage that I became aware of great antagonism between the parties concerning both of the issues in contention during the conferences I conducted before the formal hearing began, and I was further reminded of the strength of these feelings during the hearing. The issues have their genesis in decisions regarding a policy of employing casuals made by the company in 1965. Upon learning of this policy, the union made unsuccessful representations to the company based on its desire that the company should not proceed with its plans. In its attempt to achieve its own policy objective, the union sought an interpretation of the relevant provisions in the Shop and Warehouse (Wholesale and Retail Establishments) State Award No. 32 of 1976 (see 66 WAIG 245). The true meaning of the award was 67 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 673 declared to be as the company had interpreted and applied it and the union then asked the Full Bench to set that declaration aside (66 WAIG 1014). In March 1986, after invoking the appeal proceedings, but before the result of that appeal was known, the union distributed a circular amongst its members employed by the company. This circular contained statements highly critical of the company alleging that its employment policy was based on a desire to take advantage of cheap junior casual labour, thereby avoiding the responsibili- ties that go with employing permanent staff. The company then withdrew the practice of deducting union contributions from the employees' pay on behalf of the union claiming that the conduct of the union justified its actions. As time went by the union applied direct forms of industrial action against the company and the company countered by taking action for damages against the union in the Federal Court. The union produced material in connection with the company's action in that court and criticised certain statements made therein. The object of that criticism was to have me believe that little or no reliance could be placed on statements made by company staff members when it came to the company criticising the union. I say nothing about the unions allegations in these respects; however, I do believe that the action taken by the company in the Federal Court assists me in deciding probabilities in connection with the case on the second part of the union's claim. It is part of the union's argument that the Common- wealth and State Tribunals have followed a policy of discouraging part-time and casual employment by erecting their awards on principles that enshrine full-time employment as the normal and desirable state of affairs throughout industry. Obviously this principle is a point of fundamental importance in the union's case, and it was supported by reference to a number of cases of early and recent times commencing with the decision of Higgins J. in Timber Industry Workers v. John Sharp and Sons Ltd (14 CAR 811). The union contends that the line of decisions reveals a trend that preserves the principle in the Timber Industry case. Thus it is suggested that the positive social and industrial benefits of full-time employment are of such importance as to allow casual employment only if it is strictly and severely regulated — as in the claim now under consideration. The union pressed its point with submissions and printed material showing that its policy is consistent with the sentiments expressed by the tribunals in the decisions referred to. I take this line of submission as being by way of contrast with the union's perception of the company's policy of employing casuals based purely on company convenience and the pursuit of higher profit. I am also told by the union, and it is not challenged, that this company alone has taken advantage of the casual worker provisions in the award to such a significant extent, the implication being that the company's actions can be contrasted with the lack of action on the subject by the generality of companies regulated by the award. Apparently, as I understand the union's argument, these companies are content to observe employment practices consistent with establishment principles and their conduct in this respect is evidence for the proposition that the policy adopted by the respondent company is not likely to be justified by its claims made about the demands by customers at different times of the day. I take the union's point to be that if the company was serioues it is most likely that other companies would have experienced the same demands, but this does not appear to be the case. I have given much thought to the principle relied on by the union and the arguments in support of its application in the present case. However, I am not convinced that the principle carries the force that the union would have me believe it carries when applying it to the circumstances of this case, involving as it does only one company. Indeed, I think that it must give way to the arrangements allowed by the award as it has been formally construed. The underlying fact is that the company has availed itself of its award rights and this is a point of substantial merit in its case, so obvious that it goes without saying. Moreover, the characteristic feature of the casual workers provision is that an employee may be dismissed at any moment without notice. But this feature has always been part of the award provision, while the 30 hours per week limitation has been more recently added. The point of this being that the clause has been developed to its present form irrespective of a general principle regarding a national preference for full-time employ- ment of the maximum number of employees throughout industry. Accordingly, it is open to be strongly inferred that the general principle does not have the significance in the retail industry in Western Australia as it may have in other industries. That is how I interpret Mr Gifford's argument regarding the relevance of the current provision in the award and I must say that I find it equally as compelling as the argument for the union on principle. The upshot of this conclusion is that the claim for conditions to regulate the employment of casuals by the company is to be decided on the balance of merit according to the evidence before me and the question is whether the company is being unfair or unreasonable by employing casual employees to the extent that it does. I have weighed the oral and documentary evidence tendered on behalf of both parties. 1 acknowledge that some employees, perhaps most of them, have preference for permanent full-time employment. However, by themselves employee preferences are not grounds for holding that employees' current employment circum- stances are unfair or unreasonable. I am also obliged to take the company's interests into account. I find, that on balance, it is now shown that casual employees are employed in circumstances that are unfair or unreason- able to them. On a wider view of reasonableness, which includes a consideration of the union's interests, I think the crucial factor is the statistical information contained in Exhibit 9. It is shown that the percentage distribution between full-time, 30 hour casual and casual late night trading and Saturday employees was 42, 26.3 and 31.7 at October 1985 and 39, 30 and 31 at September 1986.1 was told by the witness for the company that the percentage figures for the latter period occur as a result of ordinary forces and not according to predetermined targets. I am left with the clear impression that the company has achieved a satisfactory balance between the categories of employees during a period of ordinary trading circumstances and that it is highly unlikely that the balance achieved will be varied to any significant degree in future. I have no real evidentiary basis for holding that the company is unreasonable in maintaining a policy based on the percentage distributions shown in the exhibit and provided they remain unchanged, I do not think the interests of the union will be damaged or threatened. My conclusion on this part of the union's claim is that a case has not been made and the claim will be dismissed. Other respondents to the award represented by the Confederation of Western Australian Industry were granted leave to intervene in these proceedings. They supported the company's case on the grounds that an order in the union's favour would effectively supplant the current casual worker provisions in the award. The interveners will find some comfort in my finding thus far. However, they should not see them as some kind of licence for introducing new and radical employ- ment policies irrespective of the union's concern for employees' interests. I trust that is not their intention, but I feel the need to sound a note of caution because I have sensed a degree of tension between the union and a number of the respondents to the award lately that should be overcome as quickly as,possible. I think that by emphasising that this is a case between the union and one company in very special circumstances, I shall do something to help the union and the interveners in their industrial relations. u 67 W.A.I.G. Moreover, as indicated earlier in these reasons, the union has no problem with the employment policies of the interveners at the moment. Indeed, it sought to impress me with explanations of willingness on the part of large retailers to abandon decisions to employ casuals following amicable discussions. These explanations reveal a laudable state of affairs entirely in keeping with the objects of the Act that should be encouraged. They also imply that the union would have great difficulty in convincing the Commission to amend the award in the event that an application is made to modify the rights of employers generally to employ casual labour. That is to say, whereas on its face, the award is a threat to the principle espoused by the union in this case, in general common sense and fair dealing has prevailed in the industry, thus making an amendment to the award unnecessary. On the other hand, in Application No. 931 of 1986 currently being dealt with by the Commission, the parties to the award have agreed to its amendment by the insertion of provisions that require employers to advise the union of changes in "the composition operation or size" of the workforce. These provisions also commit employers to discussing proposed changes- with the union and giving prompt consideration to the matters it may raise in the interest of employees. OveraO I do not think my decision in this matter should concern the interveners one way or the other. Finally, the company should take particular notice of my expectation that the present composition of its workforce is not likely to change. When the award is amended, the context will differe considerably from that which has surrounded the dispute giving rise to this hearing. If the company should contemplate further changes to its employment policy, it should give particular considerations to its position viz a viz the union in the light of these new award provisions. I also observe that whereas the union's evidence in this case was not strong enough to carry the day, on a future occasion it might be different. A datum point has been established on the company's evidence and this will be important in any future disputed case. I turn now to the claim for restoring the practice of the company deducting the equivalent of union contributions from employees' wages (the practice). The relevant part of the definition of industrial matters contained in the Act refers to "the restoration of a practice ..." from which it follows that no industrial matter arises unless a practice has been discontinued. Moreover, when considering a claim for restoration the Commission should exercise care to ensure that it is the discontinued practice in all of its substantial respects that is being restored, lest jurisdictional problems arise. Given that there are no such problems, it appears that the mere discontinuance of a practice is sufficient ground to establish jurisdiction in a particular case. The reasons for the discontinuance are of no consequence for purposes of jurisdiction, nor does it matter that the practice has been discontinued by a union or an employer. The essence of the union's argument is that the practice should be restored by the Commission's order, because its withdrawal by the company is an unfair, unreasonable and punitive reaction to legitimate activity on the part of the union undertaken in the interests of its members. The company asserts that withdrawal of the practice was a matter for its discretion. It claims that the practice was fairly and reasonably withdrawn, because the union circulated a document containing provocative and misleading statements about the company, and that by circulating this document amongst company employees the union was attempting to undermine the employer/employee relationship. No points of jurisdiction were raised, nor was there anything said in the company or union cases to suggest that I was being asked to make an order that would add or subtract from the previous practice. Industrial common sense tells me that the practice came about by agreement. I think it is most unlikely that it was introduced originally solely on the company's initiative. Of course it is also unlikely that the company would have agreed to introduce the practice without some benefit for itself, but if that benefit was that the union would not indulge in any form of industrial action against the company I was not told about it. For these reasons I am not impressed with the proposition that the practice can be withdrawn at the company's discretion. That seems to imply that the union has lost a privilege rather than being deprived of something that it might validly expect to continue because of an agreement. In my opinion, the company having withdrawn the practice is required to show that its action was justified in all of the circumstances. I note that the practice still applies to other unions with members employed by the company and the company does not claim that if the practice is totally restored, it will be inconvenienced administratively. In the circular dated 24 March 1986, the union was fullsome in its criticism of the company. The company appears to have been particularly upset with the following passage from the circular when deciding upon its course of action:— The SDA believes the action of Charlie Carter's management is having and ripping off so many casuals is disgraceful and a throwback to the days of Dickens. With hindsight the company is also able to say that the premise on which the union launched its criticism in the circular was proven false by the decision of the Full Bench following the appeal hearing. This may appear to show that because the company was eventually proven correct with regard to the meaning of the award it was also shown to be the reasonable party throughout the dispute and that it would have been most reasonable in making its decision about the union's motives — these motives being, as I have said, to undermine the employer/ employee relationship. Industrial campaigns, irrespective of the industry in which they are conducted, are notoriously based on. allegations of unfair employment practices and employee exploitation, sometimes even vindictiveness. There is nothing unusual about unions appealing to their members to take action against their employers in order to achieve some objective considered worthwhile and in the employee's interests; often employees take strike action because of what they have been told. But the objective is never to destroy the ongoing relationship between employer and employee, and I am not prepared to hold that the union had that objective in mind when it distributed the circular. Indeed, there is strong evidence for the view that notwithstanding the vigour with which the union was conducting the campaign, it was also anxious to establish the best possible future relationship with the company and this is hardly a basis for saying that it wanted to destroy the relationship between the company and its employees. In this respect I reproduce in full the text of a letter dated 11 March 1986 and tendered as the company's Exhibit C. This letter from Mr J. Bullock of the union addressed to the company's Deputy Managing Director reads as follows:— I have recently been transferred to Western Australia from the Federal office of our union to assist the Secretary, Mark Bishop in budding the union in this State and in improving the quality of industrial elations here. It was soon apparent to me that the relationship between the union and Charlie Carters was an extraordinarily low ebb characterised by suspicion, misunderstanding and misrepresenta- tion. As nothing is to be gained by either party in perpetuating the current unsatisfactory situation, I approached Mr Cameron of your company in an effort to set aside old differences and establish a fresh foundation for the future. While our conversation was a cordial one, Mr Cameron informed me that matters of industrial relations policy were determined by the Board and being clearly defined allowed him no room to amend current practices. He suggested that if I wanted to 67 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 675 take the matter further, it would be appropriate to write to you. I write therefore with the aim of establishing a better understanding by each side of the needs and aims of the other and to ask for the opportunity of meeting with yourself and the other members of your Board to establish a more sound basis for our future work together. It is naturally my hope that a convenient time for such a meeting could be found in the near future. I trust that you share my concern for industrial harmony and will address this matter as one of urgency. An entry was made on this letter by a company representative and dated 12 March 1986. It read as follows:— Rang Bullock and advised that as court case pending (i.e. casuals), not appropriate at this time. No meeting between the union and the company did take place and the circular dated 24 March 1986, was said by the company to be the last straw. However, Mr Bullock's letter refers to a bad relationship characterised by "suspicion, misunderstanding and misrepresentation" which is not to say that all these things were on the union's side only. Indeed I think that would be absurd. It is far more likely that when Mr Bullock's letter was written both sides were equally suspicious of each other, equally responsible for the bad state of the relationship and capable of hurting each other if the opportunity presented itself. In this context as much responsibility rested on the company to retrieve the situation as rested on the union. In my opinion it would be patently unfair to ascribe to the union the motives abstracted by the company from the union's circular. To do so would be tantamount to absolving the company from all blame in a situation that worsened over time and would allow a reprisal against the union based on convenience alone. My decision is that an order will be made in the terms claimed by the union. BEFORE THE