WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. No. 552 of 1984. Between the Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch, Applicant and Kleenpane Cleaning Service and Others, Respondents. Before the Commission in Court Session. Mr Senior Commissioner B.J. Collier, Mr Commissioner G.G. Halliwell, and Mr Commissioner G.J. Martin. The 29th day of May 1085. Mr J.A. McGinty on behalf of the Applicant and intervening on behalf of the Trades and Labor Council of WA. Mrs P.E. Bentley on behalf of the Respondents and intervening on behalf of the Confederation of Western Australian Industry (Inc). Supplementary Reasons for Decision. THE SENIOR COMMISSIONER: On the 7th day of February 1985 the Commission in Court Session agreed in principle to the Union's claim for a 38 hour working week and advised the parties that it envisaged the reduced working hours taking effect from 1 May 1985. The parties were directed to confer with a view to maximising the cost offsets and agreeing on proposed amendments to the award. We have now been advised that agreement on the matters has not been reached and arbitration is therefore necessary. The differences of opinion may be reduced to three areas and I turn to them immediately. Method of Implementation. The Union considers that shorter hours should be implemented along similar lines to the agreement reached with parties to the Cleaners and Caretakers Award No. 12 of 1969 and the Cleaners and Caretakers (Car and Caravan Parks) Award No. 5 of 1975. The reduced weekly hours in these awards are theoretical rather than practical — generally, the daily hours remain the same but additional hours of duty worked in excess of an average of 38 per week are compensated by "accrued days off". It is submitted that these awards are close to the pattern of the Victorian Cleaners Award (No. 2 of 1982) and the Union says that it would have no objection to the essence of what is contained in the Victorian determination being applicable in the award now under consideration. The Victorian award contains separate parts for full- time and casual employees. A casual worker is defined as one who is not specifically engaged as a full-time employee and who works less than 38 hours per week. Casual workers appear to be similar to the 1 335 part- time/casual employees who are employed under the Western Australian award. Clauses 5 and 6 which are provisions applicable to full- time employees read as follows: Hours of Work. Day Work Employees. (5) (a) The ordinary hours of work shall not exceed 38 per week to be worked, except for meal breaks, in periods of not more than 7.6 hours per day, between the hours of 6.30 a.m. and 6.00 p.m., Monday to Friday, inclusive. Shift Work Employees. (b) The ordinary hours of work for shift work employees shall not exceed 38 per week, nor exceed 7.6 hours per shift between 12 midnight Sunday and 12 noon Saturday. (c) (i) Except as in this Award otherwise provid- ed, the ordinary weekly hours shall be 38 per week to be worked in not more than 152 hours within 28 consecutive days with the following provisions for a four week cycle. Commencing 1 July 1982, the ordinary working hours shall be worked as a 19 day four week cycle of eight hours each on Monday to Friday inclusive, between the hours of 6.30 a.m. and 6.00 p.m. for Day Work Employees as defined in Clause 5 (a) and between the hours of 12 midnight Sunday and 12 noon Saturday for Shift Work Employees as defined in Clause 5 (b) with 0.4 of one hour for each day worked accruing as an entitlement to take a rostered day off between Monday to Friday in each four week cycle, (ii) Where in the circumstances it is agreed between the employer and the majority of employees in the establishment that an alternative method to employees having one rostered day off, for each four- weekly-cycle, this shall be done by one of the following methods. (a) by employees working shorter hours each day. (b) by employees working shorter hours on one or more days each week. (c) by fixing one week day on which all employees will be off during a particular work cycle. 65 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 1681 (d) by rostering employees off on various days of the week during a particular work cycle, so that each employee has one day off during that cycle. (e) by agreement between the employer and the majority of employees in the establishment, rostered days may be accrued up to a maximum of five days. (d) Where the objective is for employees to have more than one rostered day off in a four-week-cycle, by mutual agreement between the employer and the majority of employees in an establishment, the employer and employees may agree that ordinary hours exceed more than the standard hours fixed for a day's work, but not exceeding 10 on any day, thus enabling a week day off to be taken more frequently than would otherwise apply. (e) (i) The ordinary hours of work having been determined by the employer in accordance with (a), (b), (c) and (d) hereof, shall not be altered except in the case of emergency, without the giving of one week's notice of such alteration. (ii) Once a cycle has been agreed upon and implemented, it shall not be varied until that cycle has been completed. Disagreements Concerning Implementation of Shorter Hours. 6. In the absence of agreement at site level in respect to the implementation of shorter hours, the procedure to be followed to resolve the matter shall be as follows: (i) Consultation shall take place within the particular establishment concerned. (ii) If the problem is unable to be resolved at establishment level, it may be referred to the State Secretary of the Union, or the nominated representatives of the State Secretary, at which level the issue shall be dealt with without delay. (iii) If the problem remains unresolved, the matter may be referred by either party to the Cleaners Conciliation and Arbitration Board for resoluation. The hours of work for casual employees are set out in Clause 14 of the award as follows: Hours of Work. 14 (a) The ordinary hours of work shall be less than 38 per week to be worked except for meal breaks, in periods of not more than 76 hours per fortnight, between 12 midnight Sunday and 12 mid- night Friday inclusive. (b) Except in this award as otherwise provided, the ordinary weekly hours shall be less than 38 per week to be worked in accordance with the following provisions of a four-week-cycle. (i) Where an employee currently works a regular weekly number of hours on each of the days Monday to Friday the employee shall have an entitlement to take a day Monday to Friday as a rostered day off in each four-week-cycle. (ii) Where in circumstances it is agreed between the employer and the majority of employees in the establishment that it is not practicable to implement the pro- cedure outlined in Clause 14 (b) (i), agree- ment may be reached on an alternative method to implement shorter hours. The alternative as outlined in Clause 5 (c) (ii) shall apply to casual employees as defined. (iii) In the absence of agreement in respect to the implementation of shorter hours, the procedure to be followed shall be as defined in Clause 6. (c) (i) The ordinary hours of work having been determined by the employer in accordance with (a) hereof shall not be altered, except in the case of emergency without the giving of one week's notice of such alteration, (ii) Once a cycle has been agreed upon and implemented, it shall not be varied until that cycle has been completed. The employers considered that the Union's proposals, including the Victorian provisions, do not leave them with sufficient flexibility of operation. While the block system of accrued time off may suit many employees and employers under other awards the respondents to the instant award stress the difficulty of implementing this sort of arrangement because of the nature of the industry. Contractors employ people in numerous different types of cleaning contracts and these were explained to the Commission. In many cases employers have a mix of full-time, part-time and casual workers and they want to be able to allocate rostered time off for a shorter day or a shorter week in accordance with their needs and in accordance with the jobs which they have to do. In short, employers say that the business require- ments in this industry ought to have a high priority in a situation where cost offsets of the type achieved in other industries are incapable of implementation in this type of operation. The employers submit that there should not be imposed upon them a method which would increase the cost to the industry when there are other methods available which will involve no extra costs or at least minimise them. I have given considerable thought to the views of the parties over this question and have reached the con- clusion that efforts should be made by the employers to accommodate the Union's wishes that the relatively few full-time employees in the industry should enjoy the approved shorter hours in the form of accrued days off work at times to meet the mutual convenience of the employer and employee. However I accept that there may be cases where this is impracticable and consider that a provision similar to Clause 5 c (ii) in the Victorian award should be included in this award so that efforts can be made to reach agreement in such cases for an alternative method of implementation. With respect to part-time and casual employees who form the bulk of the total workforce I do not accept that there is any need for them to be granted relief from the hours which they have voluntarily contracted to work. Just because the Commission accepts that 38 hours should be standard hours in a particular industry to enable employees to enjoy the benefits of greater leisure time it should not be concluded that an employee who works less than standard hours is considered also to require greater leisure time for the same reasons as the full-time employee. I see no reason at all why he should not continue to work the hours which he contracted to work and for so doing he will reap a higher remuneration because of the 38 divisor in the assessment of the hourly rate. Notwithstanding the provisions in the Victorian award I am not satisfied that equity demands that it be followed with respect to part-time/casual employees. Proposed Reduction of Afternoon Shift Penalty. The respondents submit that subclause (9) of Clause 6.—Hours, of the award should be varied to cut costs as an offset to the cost of the implementation of a 38-hour working week. Prior to 1 January 1983 an employee was paid a loading of 15 per cent for all time worked after 9.00 p.m. or before 6.00 a.m. However, by consent of the parties, that provision was changed from 1 January 1983 to enable an employee to be paid a loading for all time worked after 6.00 p.m. and before 6.00 a.m. The employers ask that the agreement reached be rescinded WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 65 W.A.I.G. 1682 and the earlier practice be restored. The respondents did not make out a substantive case for the Commission to move in this direction and I reject the proposition accordingly. Operative Date. In our decision of 7 February 1985 we gave an indication to the parties that we would envisage the reduced working hours taking effect from 1 May 1985.1 am now persuaded that, through nobody's fault, the time was insufficient for constructive negotiations to take place and for any matter of disagreement to be decided by the Commission in advance of the proposed operative date. I am now of the view that the hours clause in the award should be amended to take effect from 1 June 1985. MR COMMISSIONER HALLIWELL: I agree and have nothing to add. MR COMMISSIONER MARTIN: Whilst I in no way resile from the views expressed in my reasons for decision of the 7th day of February 1985 I consider that to give effect to the majority view of the Commission in Court Session of that date the proposals of the Senior Commissioner are sensible and equitable and I accordingly agree that those proposals be reflected in the minutes of the proposed order to issue in determination of this application. THE SENIOR COMMISSIONER: The parties are directed to confer immediately on the content of an order which will reflect the decision of the Commission in Court Session. They may have recourse to myself if any problem arises. BEFORE THE