PR939681 PR939681 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170CE application for relief in respect of termination of employment Bernard Graham Frederick Heinz and Ramsey Meat Packaging Services Pty Limited (U2003/4469) COMMISSIONER RAFFAELLI SYDNEY, 22 OCTOBER 2003 Termination of employment - jurisdiction - whether the employee was terminated - engaged on a daily hire basis under a federal award - AWA ceases once employment ends. DECISION [1] Mr Bernard Heinz (the Applicant) has lodged an application under s.170CE of the Workplace Relations Act 1996 (the Act) alleging that his termination was harsh, unjust or unreasonable. [2] However, his former employer, Ramsey Food Services Pty Limited (Ramsey) challenges the jurisdiction of the Commission to deal with the matter. This is based on its allegation that Mr Heinz was a part-time daily hire employee whose period of employment came to an end each day that he was employed to do work. Mr Heinz's complaint, that he was from 29 May 2003 no longer offered work, cannot in the circumstances of daily hire amount to termination. [3] The facts include the following: 3.1 The Applicant was employed as a slaughterman at Ramsey's South Grafton Abattoir from at least 1999. 3.2 From or at about that time his employment conditions were governed by an Australian Workplace Agreement (AWA). 3.3 As a result of a stock shortage the Applicant and other employees were advised on 30 August 2002 that there was an insufficiency of work and attendance was not required. Ramsey considered that the notification amounted to termination of the employment of the persons affected, but the notification was not seen by all recipients as amounting to termination. 3.4 In any case, by way of a letter dated 10 September 2002, which forms part of Exhibit Ramsey 1, Ramsey wrote to the Applicant (and presumably to other employees in a similar fashion) and stated in part: "The industrial instruments provide that there is no opportunity to stand down employees where there is a shortage of stock. Accordingly, we have had to officially terminate your services with one weeks notice." 3.5 At this time there was a strike at the abattoir which extended from about 13 September until 19 September 2002. The Applicant participated in the strike, but then on Wednesday 18 September 2002 he went back to work. He also worked on Thursday 19 and Friday 20 September 2002. 3.6 As from Monday 23 September 2002, the Applicant worked again continuously for some time. 3.7 On 23 September 2002, the AWA was terminated in accordance with section 170VM of the Act. 3.8 In the absence of the AWA the Federal Meat Industry (Processing) Award 1996 [F0512] (the Award) (now re-titled as the Federal Meat Industry (Processing) Award 2000 [AW781451]) applied. 3.9 As from the start of work on 23 September 2002 a Notice was posted at the workplace. It read in part: " Notice-To One and All As of today 23rd September 2002 the A.W.A. has been terminated. Accordingly the relevant award for this establishment is the Federal Meat Industry (Processing) Award 1996. Copies are available by contacting Mr Paul Marshall. Initially all employees shall be employed as part-time daily hire. Final working hours and meal breaks will be advised shortly." (Exhibit Ramsay 1/E) 3.10 According to Ramsey, from 23 September 2002 the Applicant worked each day on a part-time daily hire basis until 29 May 2003 (excluding weekends and a period of workers compensation absence in January 2003). 3.11 On the morning of 29 May 2003, the Applicant attended work. It was the usual practice that employees initially obtained their clean work clothes. He was told that none were available and that he should speak with the foreman. The foreman told the Applicant that there was no work available for him on that day. 3.12 The Applicant gave evidence that he attended work on subsequent days and on each of those days he was told that there was no work for him. 3.13 On 27 June 2003 the Applicant made this application. [4] It was the position of Mr Hannigan who represented Ramsey that the Applicant was a part-time daily hire employee. The Applicant was advised of that fact on 23 September 2002. Moreover, is it clear (e.g. from his pay slips) that he was at all relevant times paid a 10% loading referable to daily hire employment under the Award. [5] Given that, the Applicant's employment commenced when he was employed on each day and it terminated at the end of such day or shift. This is because clause 8.10.1 of the Award states: " 8.10.1 A daily hire employee or a part-time daily hire employee will be employed by the day or shift or part thereof as the case may be and, without prejudice to the provisions of this award as to payment for award holidays, sick leave and annual leave, employment will terminate at the end of each day or shift on which the employee is employed." [6] Additionally, there are the other provisions of clause 8.10 which provide: "8.10.2 A daily hire employee may be required to work no less than 7.6 ordinary hours for each day they are employed in accordance with this award. 8.10.3 A part-time daily hire employee may be required to work not less than four consecutive hours for each day they are employed in accordance with this award. 8.10.4 Notwithstanding the termination of employment at the end of each day or shift, the engagement of a daily hire employee or a part-time daily hire employee will continue until the engagement is terminated. 8.10.5 Such engagement may be terminated by notice on either side as from the end of the ordinary working hours on the day or shift on which it is given, whether the employee is employed on that day or not, or at any later time specified by the notice. 8.10.6 An employee who terminates their engagement as from a time prior to the end of the ordinary working hours on any day or shift without having given the prescribed notice will not be entitled to payment in respect of any time actually worked on that day or shift. 8.10.7 Such engagement will be deemed to be terminated if the employment of the employee is summarily terminated during any day or shift in accordance with 9.2. 8.10.8 In consideration of the rights conferred on daily hire employees or a part-time daily hire employee by this part of this award, a daily hire employee or a part-time daily hire employee will attend and offer for employment at a place specified by the employer at the normal starting time on each ordinary working day unless notified that on a particular day they are not required to attend. 8.10.9 A daily hire employee will be remunerated at the daily rate of one-fifth of the award rate per week prescribed by 14.1, for the classification in which they are employed plus a daily hire loading of ten per cent of that daily rate. 8.10.10 A part-time daily hire employee will receive, on a pro-rata hourly basis, equivalent pay and conditions to those of daily hire employees who do the same work." [7] Ramsey referred the Commission to comments by Commissioner Bacon in AMIEU v Consolidated Meat Group Pty Ltd [PR91656]. These were: " 9. It is necessary to outline two aspects of the operation of the award prior to turning to the submissions of the parties. The award contains a provision that is common in awards that operate in the meat industry but is not used in most other industries. In addition to the usual forms of employment (i.e. full time, part time or casual) this award contains the concept of "daily hire". A daily hire employee (relevant to this decision) has the following characteristics. The employee's employment (like a casual employee) terminates at the end of each day or shift. Unlike casual employment however, the daily hire "persons" engagement with (in this case) CMG continues. Thus such a person can have the status of being "engaged" but not "employed" by CMG. To this end the award provides that a daily hire employee "will attend and offer for employment . . . on each ordinary working day unless notified that on a particular day they are not required to attend". 10. If not employed on the day there is no requirement for CMG to pay such people. When employed the employees receive a 10% premium for being "daily hire". There is no award obligation on (the employer?) in this case CMG, to have (or provide to daily hire people) any reason for the decision not to employ them on any day. This is contrasted to stand down provisions in other awards which are only enlivened in certain circumstances (e.g. no useful work due to strike or break down of machinery, etc). [8] Consequently, the act of not employing the Applicant on and from 29 May 2003 could not amount to the termination of employment of the Applicant, given his status as a daily hire employee. [9] Mr James, who represented the Applicant, did not concede that the Applicant was a daily hire employee. He challenged the efficacy of the employer's actions in terminating the Applicant's employment in September 2002. CONCLUSION [10] It seems that once termination of employment occurs an AWA is brought to an end. That is, the AWA does not have the continuing effect of an award which might continue to apply as a person moves in and out of employment. [11] Part VID of the Act, deals with AWAs. It is clear that AWAs are predicated on the existence of the employment relationship. Thus section 170VF provides as follows: " 170VF Employer and employee may make an AWA (1) An employer and employee may make a written agreement, called an Australian workplace agreement, that deals with matters pertaining to the relationship between an employer and employee. (2) The AWA may be made before commencement of the employment." While the AWA may be made before the commencement of employment (s170VF(2)), it does not start to operate until at least employment commences. Section 170VJ(1) provides: " 170VJ Period of operation of AWA (1) An AWA for a new employee starts operating on the later of: (a) the day after a filing receipt is issued for the AWA; or (b) the day specified in the AWA as the starting day; or (c) the day the employment commences; . . ." Once employment is brought to an end, the effect of an AWA on an employee also ends. If re-engaged, the employer and employee need to enter into a new AWA. [12] It is clear that the Applicant's employment ended at least on 10 September 2002 with the seven days notice perhaps bringing its effective date as 17 September 2002. That was the end of the AWA. When the Applicant was employed on 18 September 2002 his employment would have then been governed by the Award, perforce of Ramsey's membership of a registered organisation that is party to the Award. [13] It seems that he was not on 18, 19 or 20 September paid as a daily hire employee under the Award. Nothing was put to suggest that he was a casual. The pay advice for the pay period up to Sunday, 22 September 2002 (Exhibit Heinz 1) suggests neither daily hire nor casual loading was being paid. [14] I take it that he was a full-time or part-time employee. [15] That being the case, what was the effect of Ramsey's Notice of 23 September 2002 to employees? In that regard, clause 8.1 of the Award is relevant. It reads: " 8.1 An employee may be engaged on full-time, part-time, casual, daily hire or part-time daily hire employment. At the point of an offer of employment, the employer shall inform the employee which category of employment is being offered. The employer and an employee may agree to the transfer of the employee from one category to another. Notwithstanding anything contained in this Award, if the employer and an employee are unable to agree upon a transfer from one category to another, the employer may require the employee to transfer from:- 8.1.1 full-time to daily hire; or 8.1.2 daily hire to full-time; or 8.1.3 part-time to part-time daily hire; or 8.1.4 part-time daily hire to part-time; upon giving to the employee 7 days notice of such transfer." [16] It was said that the Notice issued on 23 September 2002 had the effect of making Mr Heinz a daily hire employee either from 23 September 2002 or at least after seven days. [17] It would seem that for employees commencing employment on 23 September 2002 they were being informed by the Notice that they were being offered the category of employment of part-time daily hire. [18] But Mr Heinz was already an employee and was covered by the Award from Wednesday, 18 September 2002. To transfer Mr Heinz from the status of full-time or part-time to part-time daily hire, agreement is required. If there is no agreement then the employer must give an employee seven days notice of such transfer of employment category. [19] The Notice of 23 September 2002 is not a notice of transfer from one category to another. No word such as "transfer" or "change" or some such term is referred to. It could have no effect either immediately or after seven days on Mr Heinz's employment status. [20] Thus, Mr Heinz continued to be employed even after 23 September 2002 as a full-time or part-time employee. [21] There is no doubt that he was paid the daily hire loading. It is said that he therefore accepted daily hire status. [22] Mr Heinz was a man of very limited education. He cannot read. He possibly cannot write. He has always had to rely on assistance from others including his father. I accept his evidence that he understood very little about his category of employment. He was unaware of the daily hire loading. Given the numerous changes in the level of work and applicable instruments at the abattoir over September and October 2002, it is not surprising that Mr Heinz was not aware of how he was being categorized or paid either before 18 September, at 18 September or from 23 September 2002. His evidence was also that his pay varied from week to week (Transcript PN461). His evidence that he was unaware of the daily hire loading component rings true in the context of ever-changing wages received by him. [23] I do not find that Mr Heinz ever agreed to his change of status to daily hire employment. [24] Given that, Ramsey's actions in refusing to provide him with work and payment from 29 May 2003 amounts to a fundamental frustration of the contract of employment. It amounts to a termination of employment at Ramsey's initiative. [25] Mr Heinz's application is properly before the Commission. [26] The file will now be allocated for conciliation. BY THE COMMISSION: COMMISSIONER Appearances: P. James , solicitor, for the applicant. F. Hannigan , solicitor, for Ramsey Food Services Pty Limited. Hearing Details: 2003 Grafton: September 26. Printed by authority of the Commonwealth Government Printer <Price code C>