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[Extract from Queensland Government Industrial Gazette,
dated 20 January, 2006, Vol. 181, No. 3, pages 85-90]
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 - s. 125 - application to amend an award
Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees AND National Retail Association Limited, Union of Employers and Others (No. B1889 of 2004)
RETAIL INDUSTRY AWARD - STATE 2004
DEPUTY PRESIDENT SWAN / 5 January 2006DECISION
Case No. B1889 of 2004 is an application by the Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees (SDA) to amend the Retail Industry Award - State 2004.
On 6 June 2005, a Decision was issued by the Commission (as currently constituted) which detailed the breadth of the application as it then was (Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees AND National Retail Association Limited, Union of Employers AND Others (No. B1889 of 2004) QGIG 179, No. 7, pages 199-202).
At that time, the Commission determined (for reasons outlined in that decision) to continue to further hear the matter for the purpose of considering witness evidence to be produced by the respondent, the National Retail Association Limited, Union of Employers (NRA). That decision was the subject of an Appeal before the Industrial Court of Queensland (Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees AND National Retail Association Limited, Union of Employers and Others (2005)179 QGIG 15 at 586-587) and the Commission decision was upheld.
Since the first hearing of the matter, the position of one of the parties has changed. Initially, the National Union of Workers Industrial Union of Employees Queensland (NUW) had sought an amendment somewhat different to that of the SDA. NUW now support the SDA claim and the consequence of this is an amended application which is now before the Commission. Leave was granted, without objection, to hear and determine the amended application.
The amended application is as follows:
"By deletion of Clause 4.1.2 of the Award and the insertion in lieu of the following:
4.1.2 Part-time employees (as defined)
An employer may employ part-time employees as auxiliary to full-time employees in any classification in this Award.
(a) A part-time employee is one who works not less than 12 hours per week and not more than 32 hours per week, provided that;
(i) Part-time employees engaged as such as at 30 November, 1988 shall not be compelled to work less than 40 hours per fortnight unless expressly agreed otherwise, and
(ii) Part-time employees engaged as such as at 3 December, 1990 shall not be compelled to work less than 30 hours per fortnight unless expressly agreed otherwise.
(b) At the time of first being employed, the employer and the part-time employee will agree in writing on a regular pattern of work specifying at least:
(i) the hours worked each day;
(ii) the hours worked in each week or fortnight;
(iii) minimum daily payment is 3 hours;
Provided that clause 4.1.2(b) applies to part-time employees current as of 1 June, 2005.
(a) Rosters
Notwithstanding anything contained in clause 4.1.2(b)
(i) A part-time employee's roster, but not the agreed number of hours, may be altered by the giving of notice in writing of 7 days or in the case of urgent circumstances, the detail of which shall be known to the employee, affecting the employer's business, 24 hours, by the employer to the employee.
(ii) Rosters shall be regular [and] shall not be changed from week to week, or fortnight to fortnight, nor shall they be changed to avoid any Award entitlement.
(iii) No part-time employee may be employed on more than 5 days per week, or on more than 6 days in one week if in the following week the employee is rostered to work ordinary hours on not more than 4 days. Employees working on 6 consecutive days shall be allowed 2 consecutive days off.
(d) All time worked in excess of the agreed hours is paid at the overtime rate.
(e) Any agreement to vary the regular pattern of work must be made in writing before the variation occurs.
(f) Every such agreement and variation as agreed, must be retained by the employer and a copy given by the employer to the employee.
(g) An employer is required to roster a part-time employee for consecutive hours on each shift.
(h) A part-time employee employed under the provisions of clause 4.1.2 must be paid for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed for the class of work performed.
(i) A part-time employee shall be entitled to payments in respect of annual leave, sick leave, long service leave, and public holidays as prescribed in Part 7 of this Award on a pro-rata basis.".
That application is supported by the NUW and The Australian Workers' Union of Employees, Queensland (AWU) and opposed by the NRA and the Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers (QRTSA). The Hardware Association of Queensland indicated support for the NRA's position at the early stages of the hearing but have not sought to appear in the later hearings.
The NRA proposed an alternative amendment which was supported by the QRTSA. That amendment is as follows:
"4.1.2 Part-time employees (as defined)
An employer may employ part-time employees as auxiliary to full-time employees in any classification in this Award.
(a) A part-time employee is one who works not less than 12 hours per week and not more than 32 hours per week, provided that:
(i) Part-time employees engaged as such as at 30 November, 1988 shall not be compelled to work less than 40 hours per fortnight unless expressly agreed otherwise, and
(ii) Part-time employees engaged as such as at 3 December, 1990 shall not be compelled to work less than 30 hours per fortnight unless expressly agreed otherwise.
(b) At the time of first being employed, the employer and the part-time employee will agree in writing on a regular pattern of work specifying at least the hours worked in each week or fortnight.
Any agreement to vary the regular pattern of work must be made in writing before the variation occurs.
Provided that clause 4.1.2(b) applies to part-time employees current as of 1 June, 2005.
(c) Rosters
Notwithstanding anything contained in clause 4.1.2(b)
(1) a part-time employee's roster may be altered in any of the following circumstances:
(i) by the giving of notice in writing of 7 days or in the case of urgent circumstances affecting the employer's business, 24 hours, by the employer to the employee,
(ii) by mutual agreement between employer and employee,
(iii) on account of sickness or absence of a worker.
Where changes to rosters are made in accordance with the above, ordinary rates apply.
(2) No part-time employee may be employed on more than 5 days per week, or on more than 6 days in one week if in the following week the employee is rostered to work ordinary hours on not more than 4 days.
Employees working on 6 consecutive days shall be allowed 2 consecutive days off.
(d) An employer is required to roster a part-time employee for 3 consecutive hours on each shift.
(e) A part-time employee employed under the provisions of clause 4.1.2 must be paid for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed for the class of work performed. ".
It should be noted at this point that while the application seeks an amendment to the Award, the Commission has not been asked to interpret a clause/s of the Award (as per s. 284 of the Industrial Relations Act 1999 (the Act)).
In terms of evidence already before the Commission from the first hearing which remained before the Commission for determination in this hearing, the only evidence to be disregarded from the first hearing was that elicited from Mr Furner from the NUW.
All parties were in possession of all respondent affidavits and had chosen not to produce any rebuttal evidence. The evidence which had been considered by the Commission in its first decision was from Mr Swetman and is now reproduced in this decision.
"The SDA called Mr Swetman, Union official with the SDA, to give evidence on its behalf. Mr Swetman visits, during the course of his duties, various retail outlets where a certified agreement is in place between his organisation and that body. Where there is no certified agreement in place, employees are subject to the Retail Industry Award - State 2004.
Most recently, Mr Swetman visited Spotlight, a retail outlet situated at Mt Gravatt. A number of employees at this store work on a part-time basis and they had raised concerns about the irregularity of their rosters, leaving them unsure from week to week as to when they might be required to work.
The claim was also that over time payments were never made because any variation to the pattern of working hours simply took the form of a new roster.
Mr Swetman stated that:
'When I looked to the Award for assistance, there was no recourse, given that there is no Award prescription for agreed weekly hours for part-time employees, nor for predictable, structured weekly hours, nor to prevent changes of rosters on a week by week basis.'
In cross-examination, Mr Swetman stated that he had not actually received many complaints about rostering of staff - in fact, the complaints related to one workplace only. This evidence has been highlighted in order to show the basis for the application being made by the SDA.".
Under cross-examination from the advocate from the NRA, Mr Swetman claimed to have received telephone calls from members employed at Spotlight Mt Gravatt who were concerned about a number of issues. He stated that "...well, they were concerned about their rosters being changed erratically everyday. They'd come in and have a look at their roster on a daily basis and it could be up or it could be down. But yes, they were concerned about not being paid overtime, absolutely.".
Mr Swetman said that the confusion with the overtime question centred around what was considered base hours within a roster for a particular day. To exemplify this point, under cross-examination by the advocate for the QRTSA, Mr Swetman posed the position where an employee had base hours of 12 hours per week but on any given day that employee may work an extra four hours. The question was whether those extra four hours should be paid at overtime rates. In Mr Swetman's view, overtime should be paid.
Mr Swetman believed that permanent part-time employees were being utilised as casual employees never knowing if their hours were to be decreased or increased in any week. He said that, even though employers and employees signed an agreement regarding the roster, many employees did so under duress.
Further evidence adduced at the first hearing which has not yet been considered by the Commission, is now to be addressed.
QRTSA called Ms G. Luke, proprietor of Luke's Super IGA at Coolum Beach to give evidence.
This store employs approximately 13 part-time employees and whilst a set roster is applied in practice, frequently part-time employees ask for additional hours. The needs of these employees (who are mostly long-term employees) are put ahead of the needs of casual employees.
Ms Luke says that under the Award, there is flexibility to allow part-time employees to gain extra hours without incurring overtime if they do not exceed 32 hours per week, whereas under the SDA application, "if there was any variation to the agreed roster, overtime would apply even if it was under 32 hours in the week".
Were the SDA application to be successful, Ms Luke believes that it may be more cost effective to engage casuals rather than permanent part-time employees.
When cross-examined by the advocate for the SDA, Ms Luke said that when more hours became available for employees at her store it was always offered to permanent part-time employees first.
Ms Luke agreed with the SDA advocate that if employees were "directed" to work additional hours, they would pay overtime. Ms Luke admitted that she was unaware of the clause of the Award under consideration in this case.
The NRA called three witnesses, Ms Duffy, Ms Lane and Ms Clarke. Ms Duffy's evidence was as follows:
Ms Duffy is the Human Resources Manager of the Colorado Group. This company employs approximately 100 employees who work on a part-time basis. Employees work between 24 and 64 hours per fortnight. Ms Duffy stated:
"If they agree to work in excess of 64 hours in any fortnight they are paid at overtime rates for those excess hours.".
Part-time employees working for this company are rostered to work regular hours. Rosters are posted a minimum of two weeks in advance. Because of the fluctuations of demand in the retail industry, if additional hours are required to be worked, part-time employees are given the right of first refusal for the additional hours. Were the proposed amendment to be granted by the Commission, then it would be more cost effective for this company to employ casual employees.
Ms Lane's evidence was as follows:
Ms Lane is the Manager of the Spotlight store at Mt Gravatt. Ms Lane said that at no time has Mr Swetman (SDA) raised any concerns with her regarding part-time employees' rosters. While variations to a roster may occur, mostly rosters are posted a minimum of two weeks in advance. Part-time employees are always given first option of utilising additional hours when available. Similar comments made by Ms Duffy regarding increased utilisation of casual staff were the application to be granted were made by Ms Lane.