PR935981 AW782190 PR935981 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.113 application for variation The Australian Workers' Union (C2002/2592) GLASS INDUSTRY - GLASS PRODUCTION - AWARD 1998 (ODN C No. 3456 of 1977) [AW782190 Print D8650] Glass industry SENIOR DEPUTY PRESIDENT CARTWRIGHT SYDNEY, 8 AUGUST 2003 Application to increase casual loading from 20% to 25% - comparison of benefits between full-time and casual employees - methodology used in calculating appropriate casual loading - 20% is an appropriate casual loading - application dismissed. DECISION [1] On 22 May 2002, the Australian Workers' Union (" AWU ") lodged an application to vary the Glass Industry - Glass Production - Award 1998 (" the Award ") by increasing the casual loading in clause 13.4 of the Award, from 20% to 25%. [2] Hearings were listed for 18 June 2002, 14 January 2003 and 18 February 2003, but cancelled each time at the request of the AWU. The application was first heard on 7 May 2003. At that hearing, the parties confirmed that this was an application to vary the Award above the safety net. Accordingly, I referred the matter to the President under Principle 10 of Statement of Principles in the Safety Net Review - Wages May 2003 Decision . 1 On 9 May 2003, the President decided not to constitute a Full Bench, instead deciding that " it should continue to be dealt with by Senior Deputy President Cartwright " . Accordingly, I relisted the matter for 22 May 2003, and issued the following directions: "Following reference to the President in accordance with Principle 10 of the Statement of Principles in the Safety Net Review - Wages May 2003 decision [ PR002003 ], the President has decided that the application should continue to be dealt with by SDP Cartwright. Accordingly, the hearing on 22 May 2003 will be on the merits of the application. Noting that this is an application to vary the Award for wages and conditions above the safety net, the parties are directed to address at this hearing the reasons for the changes sought to this Award in this industry, and to provide appropriate evidence supporting those reasons." [3] At the request of the parties, further hearings were listed for 17 June 2003 and 1 July 2003, and time allowed for further evidence and submissions. At the hearings, Ms M Piercy represented the AWU and Ms L Brooks from Australian Business Industrial appeared for several of the employer respondents to the Award. The Commission received a copy of a fax from ACI Operations Pty Ltd that it consented to the application. Mr P Currie gave evidence at the hearing on 17 June 2003. [4] At the hearing on 17 June 2003, Ms Piercy and Ms Brooks indicated that there was a consent position between the parties, while acknowledging that that was not determinative of the merits of the case to vary the Award above the safety net. It is clear from ss.88A and 88B of the Workplace Relations Act 1996 (" the Act "), that the Commission carries the responsibility of maintaining an award safety net of fair minimum wages and conditions of employment. Whether contested or agreed, an increase in the safety net is to be justified on its merits. [5] As the directions quoted above indicate, my task is to decide the merits of the application in the particular circumstances of this Award, in this industry, based upon the case presented by the parties. 2 The employers took the position of consenting to the application and not opposing the AWU's case. Accordingly, it was left to the AWU to make the case to vary the casual loading above the safety net. [6] The AWU submitted that "...the current loading of 20% does not adequately compensate a casual employee in comparison with a full time employee". 3 In support of this submission, it presented the following table, 4 said to apply the relevant information from this Award into the table included in the Metals Industry Casuals Decision . Comparison of Entitlements applying to Full-time and Casual Employees Component Days Full-Time Casual Total working days: 260 260 260 Less days not worked: public holidays: (11) 249 Less days sick/personal: leave average use (8) 241 RATIO A 107.8% Vested entitlements payable on completion of 260 days Leave (20) 280 241 Leave loading: (3.5) 283.5 241 RATIO B 117.6% Vested contingent benefits Accrued personal leave: (5) 288.5 Long service leave (4.3) 292.8 RATIO C 121.4% Notice of termination and employment by the hour effects: Contingent benefit applicable to employment terminated on last day of work ( 1week notice or payment in lieu) 297.8 241 RATIO D 123.5% [7] Decisions by two Full Benches of the Commission have determined casual loadings in recent years: the Metals Industry Casuals Decision and the case of Re Pastoral Industry Award 1998 . 5 Both Benches compared award benefits available for full-time and casual employees as a guide for deciding the appropriate casual loading. The Pastoral Industry Casuals Decision , as the more recent of the two, quoted with approval, 6 the following passage from the Metals Industry Casual Decision : "Our consideration of the components and values to be given to particular components in a review of the casual rate loading has been most influenced by the safety net function of the loading. That rationale for the loading more or less dictates what components should be taken into account in calculating it. Primarily those components are the standard award benefits applicable to full-time employees but not applicable to casuals. Any other components, including off-sets, will need to be derived from the operation of the Award on casual employment including its incidents, in comparison with other types of employment and their incidents. Although we have had regard to the submissions put to us, and to the precedents to which we were referred, we are not persuaded that all components for calculating a fair loading can be specified with precision or individually valued. The possible exception is paid leave. But even that component involves contingencies that defy precise or uncontroversial quantification. In our view, such other components as may be identified can only be a guide to an overall quantification of the loading. No component can be the determinant of a precise level to be applied. Arbitral judgment is likely to be necessary in making an assessment of what is fair and reasonable." 7 [8] I have proceeded on the same basis. The Full Bench in the Metals Industry Casuals Decision went on to reiterate that there is no method of calculation that can produce completely accurate results, and as such, the question is very much one of judgment, fact and degree, based on all the relevant circumstances of the case. While much of this decision is concerned with an examination of the AWU's comparison of benefits in the table above, it is clear from the Full Bench decisions that such comparison is to be considered in the context of all the circumstances of this Award, in this industry. Evidence [9] The Award has operation in most States of Australia. On Mr Currie's evidence, it applies to employment at least in Western Australia, South Australia, Victoria, New South Wales and Queensland. It covers approximately 1500 employees and at peak times, there may be approximately 100 employees working on a casual basis. 8 The predominant use of casual employment is in New South Wales and Victoria, 9 on a short term basis. 10 There are three "long-term casuals" working at a sand mining site near Newcastle in New South Wales, 11 and there is some use of casuals to cover for "long-term absences". 12 However, Mr Currie's evidence suggested that most casual employment was on a short-term basis. 13 [10] But, most casual employees working in the industry are not covered by this Award. Mr Currie gave evidence as follows: THE SENIOR DEPUTY PRESIDENT: What do you deduce from that about the state by state incidence of casual employment?---Well, in summary I would say that casual employment in the main the industry uses to either cover for peak periods for production mistakes that need to be rectified and for long-term absences, it's generally the way the industry uses casuals. There are very few companies that actually employ casuals direct, they generally go through a labour hire firm. [PN228] What is the significance of that?---I suppose the only significance is that it probably suits them because it's generally only for short periods of time, where probably 10 years ago most of the companies would employ people directly they find I think that they get a higher quality of people through labour hire firms rather than trying to recruit them themselves for short periods of time. [PN229] Does that mean they are covered by the award or not covered by the award?---Technically they are probably not covered by the award and in fact we don't have labour hire companies roped in but because we have certified agreements on top of the award we always have agreements with companies that the going rate on that site is what the casuals will be paid, whether they are employed directly by the company or through labour hire firms. [PN230] But the mechanism by which that is done is the enterprise agreement rather than the award coverage?---Yes, your Honour, because the problem as you are aware is trying to track labour hire companies and the major companies can change who they use and we would be for ever and a year trying to rope labour hire companies in. [PN231] [11] In the light of all of Mr Currie's evidence, I have concluded that the casual employment most likely to be covered by this Award is the direct employment by employer respondents of a small number of long-term casual employees in New South Wales. [12] It appears that long term employment is also common for full-time employees. Mr Currie estimated that the average length of service for full-time employees across the whole industry " would be at least 10 years... ". 14 Weighing all of the material before me, I accept that ten years' service is representative of the average length of employment of full-time employees under the Award. [13] As to the use of Award benefits by full-time employees, Mr Currie gave evidence that average sick leave was likely to be " at least four or five days per year on the industry as an average ". 15 On carer's and bereavement leave, he said: " I am not aware of many instances of people using carers leave but there obviously would be some instances. " 16 Mr Currie's evidence was that employment in the industry is currently " fairly stable ", so the probability of redundancy is low " within the next few years. " 17 [14] The probability of other termination of employment at the employer's initiative is also low. Of the 1500 people employed, Mr Currie said: "...certainly I don't know of any particular year within the whole industry where we would get 10 people dismissed outside of redundancy for misconduct or not performing or something along those lines." 18 [15] Ms Piercy agreed that since there is no long service leave provision in the Award, the relevant State legislation governs long service leave for employees covered by the Award. 19 It was conceded that in some States, casuals are not excluded from long service leave, and may in fact qualify for the benefit. 20 Ms Brooks submitted that at least, this applies to New South Wales and Queensland. 21 Award Benefits [16] In addition to the table in para [6] above, the AWU provided in Exhibit A-2 a list of Award benefits available to full-time employees, but not to casual employees. [17] Clause 33 of the Award provides for ten specified, and one additional, paid public holidays. [18] Clause 31 of the Award provides for 11 days paid personal leave per year, after the first year of employment (eight days leave is available in the first year). A maximum of eight days of this yearly benefit may accrue to the next year. This personal leave of 11 days is available as sick leave (up to eight days per year), carer's leave (up to five days per year), or bereavement leave (up to three days per year). Unused accrued personal leave is not paid out on termination of employment. [19] Clause 29 provides for annual leave of 28 consecutive days, including non-working days, " after each 12 months service (less the period of annual leave) " . Under clause 29.8, leave is to be taken within six months of the date when the right to leave accrued. The effect of these provisions is that after the first year of employment, a full-time worker will work for 48 weeks and be paid for 52 weeks. Untaken annual leave is to be paid out on termination of employment. Leave loading at 17.5% applies to the four week benefit and is similarly to be paid out on termination of employment. [20] Clause 14 deals with notice of termination. It contains a table of weeks of notice for periods of continuous service, ranging from one week's notice for less than one year's service, to four weeks' notice after five years' service. An employee over age forty-five with two or more years' service will receive an additional week's notice. The maximum notice of termination is four weeks for an employee up to age 45, regardless of the length by which an employee's years of service exceed five, and five weeks for an employee over age 45, again, regardless of the length by which an employee's years of service exceed five. [21] The same methodology applies to severance pay in clause 15. The Award provides a scale of pay per year of service up to four years' service, after which payment is at a flat eight weeks, regardless of the length of service beyond four years. Clause 15, and the benefit provided by it, were not referred to in Exhibit A-2. [22] Exhibit A-2 specified long service leave applicable to full-time employees as " 13 weeks pay after 15 years completed service " . The AWU relied on the New South Wales legislation as the source of this benefit, 22 which is not provided by the Award. However, on my understanding of the relevant State Acts, 13 weeks leave after 15 years' service is the benefit in Victoria, Western Australia and Tasmania. In New South Wales, two months' paid long service leave is available after ten years continuous service. New South Wales also has the most generous provision on years of service required before pro-rata payment is available on termination of employment. No long service leave benefit applies to an employee leaving employment before completing five years of service in New South Wales, and pro-rata payment is to be made on termination after between five and ten years of service. In all other States and Territories, no benefit is payable to an employee leaving the employer's employment before between seven or ten years of service have elapsed. Casual employees qualify for long service leave in some States and Territories, and may qualify in others. The relevant features of long service leave legislation may be summarised as follows: LONG SERVICE LEAVE BENEFITS: COMPARITIVE TABLE 23 Jurisdiction Yrs of service for vested benefit Yrs of service for pro-rata payment Leave benefit Casuals qualify? QLD 10 7 8.6667 weeks Yes NSW 10 5 2 months Probably 24 ACT 10 7 2 months Possibly VIC 15 10 13 weeks Possibly TAS 15 7 13 weeks Yes SA 10 7 13 weeks Possibly WA 15 10 13 weeks Possibly NT 10 7 13 weeks Possibly Methodology [23] Following the hearing on 22 May 2003, I sought submissions from the parties on several points of methodology in the AWU's table in Exhibit A-2. [24] The AWU calculated long service leave for a full-time employee on the basis of the maximum benefit accrued after 15 years of service. 25 Implicit in the calculation is that a casual employee's benefits are to be compared with those for a long serving full-time employee. A comparison with a long serving full-time employee is also suggested by the AWU's use of the termination benefit calculation for an employee over 45 years old with five years' service. 26 However, the years of service applied to calculate each of these benefits is not consistent. In one part of the table, the calculation is based on 15 years of service, and in another part, the calculation uses five years' service. Therefore, I sought submissions " as to the relevant full-time employee subject to the comparison with a casual employee. In other words, what length of service and other characteristics are attributed to the full-time employee to whom the comparison with a casual employee is made. " 27 [25] Further, notice of termination of employment is a contingent benefit, which can apply only once in a long term full-time employee's continuous employment with the employer. The AWU's calculation seeks to build this once-off event into the loading paid every year to casual employees, on the basis that every full-time employee qualifies for notice of termination of employment. 28 This cannot be correct. The benefit applies only to full-time employees whose employment is terminated at the initiative of the employer, and, on the AWU's submission, the probability of such termination in this industry is low. 29 Accordingly, I sought submissions " as to how one-off benefits available to full-time employees should be treated (eg. termination of employment and severance). " 30 [26] There are several questions of methodology to be determined in comparing benefits for full-time and casual employees. The AWU did not address the issues raised at hearing, but sought to rely on the methodology used in the Metals Industry Casuals Decision . 31 [27] Firstly, the benefits relied on by the AWU for the comparison change over time for a full-time employee. At the simplest level, there is a difference in Award benefits between the first, and subsequent years of employment. For example, the amount of personal leave available increases after one year. Similarly, the cycle of annual leave is established after the first year: an employee qualifies for leave in one year and takes it as paid time off in the following year. Consequently, to avoid distortion in the comparison due to the "start-up" features of the first year of full-time employment, and given that the evidence in this case supports a comparison over multiple years, I have compared benefits in the context of ongoing employment, rather than select a single point at the end of the first year of a full-time employee's employment. [28] As a result, the various types of leave are treated in the comparison as days paid, but not worked, in accordance with the Award provisions. Applying the Award to the comparison of benefits below, an ongoing full-time employee will be paid for five days per week for 52 weeks, and receive pay for additional days only in the case of annual leave loading, and the contingent event of termination of employment at the initiation of the employer. Other Award benefits of paid leave are shown as days paid, but not worked. (I deal later with long service leave as a special case.) [29] In the Metals Industry Casuals Decision , vested leave benefits for a full-time employee at the end of the first year of employment were added to the five days by 52 weeks for which a full-time employee is paid, noting the particular provision in that Award on how annual leave is to be calculated. 32 That is not the case for ongoing full-time employees here. Continuing employment over multiple years under this Award does not increase days paid per year beyond five days per week for 52 weeks, other than in the circumstances above. [30] My analysis below of days paid, compared to days worked under this Award, favours the AWU's application, by increasing the calculated ratios as a result of reducing the denominator. The application of this methodology to the equivalent table in the Pastoral Industry Casuals Decision , 33 would also increase the ratio calculated there, depending on the treatment of long service leave. [31] Long service leave is an example of a benefit that applies as a step function. There is no benefit until five, seven or ten years of service, depending on the applicable State legislation, at which point pro-rata payment becomes available on termination of employment. Consequently, to the extent that a single figure is applied as a benefit to each year of employment, that introduces a distortion into the comparison. In such circumstances, differential rates would be sensible for the first period of employment in which no benefit applies, compared to later years when the qualifying period has been served. [32] In this case, I am satisfied that such an approach is not warranted. The evidence supports a comparison with a long-serving full-time employee. In the absence of any submission from the parties, applying Mr Currie's evidence, I have based the calculation of a full-time employee's Award benefits on ten years of continuous service. [33] Secondly, the Bench in the Metals Industry Casuals Decision recognised the " contingent " nature of several Award benefits, in the sense that the benefit is contingent on another event occurring. 34 Applying statistical methods, the "expected value" of a contingent benefit may be estimated by applying the probability of the triggering event's occurrence to the value of the benefit. In the absence of arguments to the contrary, on the evidence in this case, in my view the low probability attached to occurrences of either notice of termination or of severance payments is to be applied to the value of those benefits. This is all the more so, because the value of such contingent benefits, which may arise only once over all the years of a full-time employee's employment, is to be included in a loading paid for each and every hour of a casual employee's work. [34] Similarly, given that in this Award, unused personal leave is not paid out on termination of employment, no basis was made out for the personal leave benefit to carry a higher value in the comparison than its actual usage by employees. While at any point an employee might have accrued personal leave available, over the period of employment the amount of leave paid must equal the amount of leave taken. In this case, the cost to the employer of the benefit is equal to its value to employees. Indeed, that is the case with any vested or accrued Award benefit not paid out on termination. Comparison of Benefits [35] In relation to public holidays, I am satisfied on the evidence that, as a result of all the Award's provisions, a full-time employee will be paid more than a casual employee working the same days, by the amount of ordinary time earnings for 11 public holidays. That applies under this Award whether public holidays are worked or not. [36] Applying the evidence in this case, I am satisfied that personal leave may be valued at six days per year. I note that this is higher than applied in the Pastoral Industry Casuals Decision and the same as the average use in the Metals Industry Casuals Decision . On the evidence of Mr Currie, sick leave use is four to five days per year, and the use of carer's and bereavement leave is low. Indeed, over a ten year period, a full-time employee's "immediate family or household" could die out before the full amount of available bereavement leave is exhausted. [37] On Mr Currie's evidence, the probability of dismissal is 10 out of 1500 over a year, or 1 in 150. A full-time employee with ten years of service would receive five weeks' notice of termination, if aged over 45. If that notice was to be paid out in lieu of working the five weeks, the employee would benefit to the extent of five weeks paid, in addition to weeks worked. However, the expected value of the benefit across the full-time employees covered by the Award is the value of the benefit multiplied by the probability of its occurrence. In this case, five weeks over ten years equates to a benefit of 2.5 days per year, multiplied by 0.0067, to produce an expected benefit of 0.02 days per year. This applies the maximum benefit from the Award, and is calculated on the basis that the probability of dismissal is the same in each year of service. That is unlikely to be the case. It may be reasonable to expect that the probability of dismissal reduces with increasing experience in the employer's business. However, that was not a matter canvassed in this case and I do not rely on such conjecture. Despite applying what is arguably a best case scenario in terms of the benefit to the employee, I am satisfied that the expected value of the notice of termination benefit is low. [38] So too is the severance benefit. The probability of redundancy is low on Mr Currie's evidence. Even if one in every 25 full-time employees were to be made redundant in a year, the expected value of the severance benefit of eight weeks pay after ten years' service would be four days per year multiplied by 0.04, to produce 0.16 days per year. [39] On this basis, the sum of both Award benefits on termination of employment at the initiative of the employer is 0.2 days per year paid in addition to days worked. In addition, this calculation is not sensitive to the use of higher probabilities within the range justified by the evidence or different assumptions on how the quantum of Award benefit applies. [40] Annual leave loading is to be added to the total days for which a full-time employee is paid over a year. As with the termination benefits discussed above, payment of the annual leave loading is not already covered by pay for five days per week over 52 weeks. These are days paid in addition to days worked. [41] Long service leave is shown in the table that follows as days paid in addition to days worked, even though in New South Wales, paid leave is available after ten years' service with the employer. In New South Wales, a long term casual may qualify for long service leave and suffer no disadvantage compared to a full-time employee. Thus, it is arguable that the long service leave benefit is not a point of difference in New South Wales between full-time and casual employees, and may not come into a comparison based on differences. Further, on my understanding of the authorities, depending on the facts of the case, the better view would seem to be that in most, if not all jurisdictions, a casual employee working as such, for one employer for a period of seven years or more, is likely to be regarded as in a position to claim long service leave benefits as well. 35 [42] At any rate, the Metals Industry Casuals Decision so heavily discounted long service leave for " contingencies ", that it ascribed a value " no higher than .65 of a day " to the benefit in its own right. 36 Instead, the Bench used the " long service leave " figure in its table as a surrogate for " the accruing benefits of longer service for full-time employees " in " making a judgement about other non-quantifiable components " . 37 It is not apparent from the Metals Industry Casuals Decision what these " accruing benefits of longer service for full-time employees " are. But since they are not categories of leave, it is appropriate to treat any benefit included in the comparison as days paid in addition to days worked. [43] In this case, the AWU did not argue that there are " accruing benefits of longer service for full-time employees " to be taken into account or that there are factors to be considered in a comparison of benefits beyond the factors listed in Exhibit A-2. Nevertheless, considering all of the factors discussed in the Pastoral Industry Casuals Decision and the Metals Industry Casuals Decision , I have included the same figure of 4.3 days in the table as a surrogate for " other non-quantifiable components ", recognising the nature of casual employment. [44] In my view, on all of the material before me, the following table sets out the appropriate comparison in this case for a casual and a full-time employee, working the same days. FULL-TIME EMPLOYEE CASUAL EMPLOYEE Days Paid Days Worked Days Paid Days Worked Total working days: 52 weeks x 5 days Public holidays Leave: · Annual · Annual leave loading · Personal · Long service leave Termination Benefit Total 260 260 260 260 -11 -11 -11 -20 -20 -20 + 3.5 -6 -6 -6 + 4.3 + 0.2 268 223 223 223 Ratio of days paid to days worked = 268 = 1.20 223 [45] On a continuing basis over several years, a full-time employee working under this Award in New South Wales, with years of service approaching ten, will work 223 days per year and be paid for 268 days. The 20% premium is paid either in additional pay, or in paid time off, all of which can be translated to days paid, but not worked. [46] I have considered the sensitivity of this ratio to changes in individual factors in the comparison, as well as to different combinations of factors. In my view, the ratio of 1.2 is sufficient to absorb a range of outcomes that might be considered on the evidence of this case. I note that it would be lower had I applied leave benefits, as both Full Benches do, to increase the days paid rather than reduce the days worked. [47] On the basis of this comparison, a casual loading of 20% is appropriate to take account of differential Award benefits between casual employees and full-time employees. [48] Further, I am not persuaded that in combination with the calculations above, some allowance for the nature of casual employment as opposed to full-time employment establishes the case for the increase sought. I have already allowed for it in the comparison. I do not have evidence before me that would justify concluding that this matter is of such value as to produce a different result. I doubt it can be established. There is nothing before me to suggest it has not been adequately dealt with and compensated within the existing loading of 20%. [49] I agree with the Bench in the Metals Industry Casuals Decision , that calculations such as the table above do not decide the matter, but rather provide a guide. However, nothing persuades me in this case, that the exercise of judgment on broader factors should produce a different result. [50] The AWU has brought no evidence or argument on other factors to be taken into account in determining this matter. Indeed, the evidence establishes that the casual loading in this Award has limited operation. I am not persuaded that in all the circumstances of this Award, in this industry, a case has been made to vary the Award above the safety net. Nor am I persuaded that juxtaposition with employees working under the Metal Industry Award should produce a different result than suggested by analysis of this Award's provisions, applied to this industry. In my view, the current loading of 20% is the appropriate casual loading to apply in this Award. [51] Having considered all of the material before me, I have determined not to grant the AWU's application. Appearances: M. Piercy for The Australian Workers' Union. L. Brooks for the employer respondents. Hearing details: 2003. Sydney: May 7, 22; June 17; July 1. Printed by authority of the Commonwealth Government Printer <Price code D> 1 (PR002003, 6 May 2003, Giudice J (President), Ross and Lawler VPP, Watson and Lacy SDPP and Hoffman and Larkin CC). 2 See also Re Metal, Engineering and Associated Industries Award, 1998 - Part I (2000) 110 IR 247 (29 December 2000, Munro J, Polites SDP and Lawson C) at 267 [50] (" Metals Industry Casuals Decision "). 3 Transcript, 22 May 2003, PN6. 4 This table is extracted from Exhibit A-2. 5 (PR930781, 30 April 2003, Ross and Lawler VPP and Mansfield C) (" Pastoral Industry Casuals Decision "). 6 Ibid at para [65]. 7 Metals Industry Casuals Decision , above n 2, at 306-7 [155]. 8 Exhibit A-1, Witness Statement of Paul Currie dated 20 May 2003, at 7. 9 Transcript, 17 June 2003, PN225. 10 Ibid at PN213-24. 11 Ibid at PN223. 12 Ibid at PN228. See also PN213. 13 Ibid at PN229. 14 Ibid at PN209. 15 Ibid at PN206. 16 Ibid at PN207. 17 Ibid at PN233. 18 Ibid at PN234. 19 Transcript, 22 May 2003, PN37-40. 20 Ibid at PN76-9. 21 Ibid at PN110. 22 Ibid at PN62. 23 Australian Labour Law Reporter , CCH Industrial Relations Law Library, Ed 14/4/03, [ ¶ 33-000]-[¶36-285]. 24 See also the Metals Industry Casuals Decision , above n 2, at 312 [172]. 25 Transcript, 22 May 2003, PN42, PN59-60, PN66-7 and PN72-3. 26 Exhibit A-2, "Notice of termination - Clause 14". 27 Directions of 22 May 2003. 28 Transcript, 22 May 2003, PN88-91. 29 Ibid at PN92-5. 30 Directions of 22 May 2003. 31 Transcript, 1 July 2003, PN276. See also Transcript, 17 June 2003, PN251-9. 32 Metals Industry Casual Decision , above n 2, at 311 [169]. 33 Above n 5, at para [109]. 34 The Bench also noted that access to a benefit may be unevenly distributed across the workforce subject to the Award. 35 See the comments of Olsson J in Stewart v Port Noarlunga Hotel Ltd (1980) 47 SAIR 406. See also cases such as Cameron v Durning [1959] AR (NSW) 142 (New South Wales Industrial Commission), Lanyon v Lockleys Hotel Pty Ltd (1972) AILR ¶668 (South Australian Industrial Commission), Haseldine v Blue Moon Catering Service (1974) AILR ¶200 (South Australian Industrial Commission), PKIU (Qld Branch) v Mirror Newspapers Ltd (1993) AILR ¶51 (Queensland Industrial Relations Commission), Robinson v NSW National Coursing Association Ltd (1982) 3 IR 161 (Chief Industrial Magistrates Court (NSW)) and Federated Clerks Union of Australia v Automatic Totalisators Ltd [1978] WAIG 1452. 36 Metals Industry Casuals Decision , above n 2, at 312 [174]. 37 Ibid at 312-3 [174].