FEDERAL COURT OF AUSTRALIA

ALHMWU v Cranbourne RSL Sub Branch Inc [1999] FCA 1425

AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION, ANDREW WEREMIJENKO, KATHLEEN BEADEL, BRUCE FORBES,

DAMIAN BEADEL, NATALIE SIMS, BELINDA MALLINSON and

SAMANTHA JANE SHEPHERD

-v- CRANBOURNE RSL SUB BRANCH INC, PETER SMITH and PETER SOMERS

V 556 OF 1999

RYAN J

18 OCTOBER 1999

MELBOURNE

THE COURT ORDERS:

1.         That, upon the first respondent by its Counsel giving the usual undertaking as to damages, the first respondent, until the hearing and determination of this application or further order:

(a)        roster the second applicant, Andrew Weremijenko, to work not less than the average number of hours per week for which he was rostered to work between 1 January and 13 September 1999 and to pay to the second applicant the supervisor's loading prescribed by the Licensed Club (Victoria) Award 1998 ("the Award") for any of the hours for which he is so rostered for work during which neither Angela Jones nor Warwick Daly is rostered for work.

(b)        roster the third applicant, Kathleen Beadel, to work not less than the average number of hours per week for which she was rostered to work between 1 January and 13 September 1999 and to pay to the third applicant the supervisor's loading prescribed by the Award for any of the hours for which she is so rostered for work during which neither Angela Jones nor Warwick Daly is rostered for work.

(c)        roster the fourth applicant, Bruce Forbes to work not less than the average number of hours per week for which he was rostered to work between 1 January and 13 September 1999 and to pay to the fourth applicant the supervisor's loading prescribed by the Award for any of the hours for which he is so rostered for work during which neither Angela Jones nor Warwick Daly is rostered for work.

(d)        roster the fifth applicant, Damian Beadel to work not less than the average number of hours per week for which he was rostered to work between 1 January and 13 September 1999.

(e)        roster the seventh applicant, Belinda Mallinson, to work not less than the average number of hours per week for which she was rostered to work between 1 January and 13 September 1999.

(f)         roster the eighth applicant, Samantha Shepherd to work not less than the average number of hours per week for which she was rostered to work between 1 January and 13 September 1999.

2.         That the respondents file and serve their defences to the amended statement of claim herein by 1 November 1999.

3.         That there be mutual discovery and inspection of documents herein by 15 November 1999.

4.         That the applicants file and serve by 29 November 1999 any further affidavit or affidavits on which they intend to rely at the trial of this application.

5.         That the respondents file and serve by 20 December 1999 any further affidavit or affidavits on which they intend to rely at the trial of this application.

6.         That there be a directions hearing herein at 10.15 am on 22 December 1999.

7.         That liberty be reserved to any party to apply on not less than 48 hours notice in writing to the other parties.

Note:       Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     There is before the Court an application for interlocutory relief in the context of a claim for the imposition of penalties on the first respondent, Cranbourne RSL Sub-Branch Inc ("the Club") for contraventions of s 170WG of the Workplace Relations Act 1996 ("the Act").  Sub-section (1) of that section provides:

"A person must not apply duress to an employer or employee in connection with an AWA or ancillary document."

2                     The first applicant, the Australian Liquor Hospitality and Miscellaneous Workers' Union ("the Union") is an organisation of employees registered under the Act and is a party to the Licensed Club (Victoria) Award 1998 ("the Award").  The individual second to eighth applicants were, at relevant times, employees of the Club and, with the exception of the sixth applicant, Ms Sims, who resigned on about 14 September 1999, are still employed by the Club.  Evidence has been furnished on affidavit by each of the individual applicants.  It is convenient to summarise separately and in order the effect of each of those affidavits.

3                     Andrew Weremijenko:

            The second applicant has been employed by the Club as a gaming machine operator and supervisor since June 1998.  Before 6 September 1999, he worked in rotation three shifts totalling 23.75 hours in the first week, for which he received a gross wage of $504.18 and two shifts totalling 15.75 hours in the second week, yielding a gross wage of $350.18.  He also worked extra, or extended, shifts as required and received a loading of $3.00 per hour for time worked as a supervisor.  On 5 July 1999, the second respondent, Mr Smith, the Club's Manager, gave Mr Weremijenko a proposed Australian Workplace Agreement ("AWA") and told him that the Award would no longer apply.  When Mr Weremijenko asked what would happen if he did not agree to the AWA, Mr Smith replied that he would be made a part-time employee and stay on the same hours. 

4                     Later, on two occasions in early August, according to Mr Weremijenko, Mr Smith told him that if he did not sign the AWA his hours would be cut.  Mr Weremijenko also claims that statements to the same effect were repeatedly made to him between early July and mid-August by the third respondent, Mr Somers, a duty manager employed by the Club.  On some of those occasions, Mr Weremijenko claims, Mr Somers said that, if he did not sign the AWA, he would lose his Sunday shift and once said that there was a big possibility that he would lose all his other shifts. 

5                     On 11 August 1999, Mr Weremijenko says, he attended a meeting between Club employees and representatives of management at which one employee mentioned a "rumour" that, if employees did not sign AWAs, they would have their supervisor shifts taken away.  According to Mr Weremijenko, Mr Smith said that it was a possibility and would more than likely happen. 

6                     On 6 September 1999, Mr Smith gave Mr Weremijenko a new roster saying that he had tried to keep Weremijenko's hours as close as he could to the old roster.  The new roster was the same as Mr Weremijenko's former roster except for a shortening by 4.25 hours of the Sunday shift in each week.  Mr Smith also said, according to Mr Weremijenko, that Weremijenko was no longer a supervisor because Smith did not regard him as a long term person in the gaming industry and the Club had employed two new "professional" people to take over the supervisor positions.  When Mr Weremijenko said that, if Mr Somers had not pressured the employees so much, they might have signed the AWAs, Mr Smith is alleged to have replied "the AWA is gone now and is no longer relevant ....... When the dust settles we can look at a new AWA which will get your hours back."

7                     Kathleen Beadel:

In an affidavit sworn 6 October 1999, the third applicant, Ms Beadel, has deposed that, between September 1998 and 13 September 1999 she had been rostered to work regular shifts on Monday, Thursday, Friday, Saturday and Sunday of each week.  Her total rostered hours amounted to 36.5 hours per week and she had been rostered as a supervisor on her Thursday and Saturday shifts, for which she received a loading of $3.00 an hour.  Her gross remuneration under that roster was approximately $700.00 a week.  On 30 June 1999, Ms Beadel says, she, in company with other employees, was handed a standard form AWA.  All employees, according to Ms Beadel, were told by Mr Smith, that they would have to enter into the AWAs or become part-time employees as things could not stay as they were.  (The Award, which came into operation on 22 December 1998 provided by cl 10 for three different categories of employees).  So far as is relevant, cl 10 is in these terms:

"10.     TYPES OF EMPLOYMENT

10.1     General

10.1.1  Employees under this award will be employed in one of the following categories:

10.1.1(a)          full-time employees;  or

10.1.1(b)          regular part-time employees;  or

10.1.1(c)          casual employees.

10.1.2  At the time of engagement an employer will inform each employee of the terms of their engagement and in particular whether they are to be full-time, regular part-time or casual.

10.2     Casual employment

10.2.1  A casual employee is an employee engaged as such.

10.2.2  A casual employee shall be paid per hour at the rate of 1/38 of the weekly rate prescribed for the class of work performed, plus the appropriate undermentioned addition to that rate:

10.2.2(a)          33.3 per cent for work Monday to Friday inclusive;

10.2.2(b)          50 per cent for work on Saturday;

10.2.2(c)          75 per cent for work on Sunday;  and

10.2.2(d)          150 per cent for work on holidays prescribed in the award.

10.2.3  Casual employees must be paid at the termination of each engagement, but may agree to be paid weekly or fortnightly.

10.2.4  On each occasion a casual employee is required to attend work he or she is entitled to a minimum payment for two hours work.

10.2.5  Upon termination of employment a casual employee must be paid pro rata annual leave on the basis of 1/12 of his/her ordinary earnings.

........

10.3.2  Full day employees

            Full day casual employees and as classified in subclause (a) hereof shall be paid the rates for work performed on any one day as follows:

10.3.2(a)          Weekdays and Saturdays - $99.28 per day of eight hours or less, exclusive of meal hour.

10.3.2(b)          Sundays - $132.32 per day of eight hours or less, exclusive of meal hour.

10.3.2(c)          Public holidays - $165.44 per day eight hours or less, exclusive of meal hours.

.......

10.3.4  Employees in charge

Persons in charge of, or supervising the work of, bar attendants or cashiers shall be paid $9.94 per day extra.

.....

10.4     Regular part-time employment

10.4.1  An employer may employ regular part-time employees in any classification in this award.

10.4.2  A regular part-time employee is an employee who:

10.4.2(a)          works less than full-time hours of 38 per week;  and

10.4.2(b)          has reasonably predictable hours of work;  and

10.4.2(c)          receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.

10.4.3  At the time of engagement the employer and the regular part-time employee will agree in writing, on a regular pattern of work, specifying at least the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day.

10.4.4  Any agreed variation to the regular pattern of work will be recorded in writing.

10.4.5  An employer is required to roster a regular part-time employee for a minimum of three consecutive hours on any shift.

10.4.6  An employee who does not meet the definition of a regular part-time employee and who is not a full-time employee will be paid as a casual employee in accordance with clause 10.2.

10.4.7  All time worked in excess of the hours as mutually arranged will be overtime and paid for at the rates prescribed in clause 16 - Overtime, of this award.

10.4.8  A regular part-time employee employed under the provisions of this clause must be paid for ordinary hours worked at the rate of 1/38 of the weekly rate prescribed for the class of work performed."

8                     At a further meeting on 11 August 1999 attended by some employees of the Club, Mr Smith and Mr Sandall of the Union, Ms Beadal says, a question was asked of Mr Smith whether employees who failed to sign an AWA would lose their supervisory shifts.  According to Ms Beadel, Mr Smith replied that he was pretty sure that they would. 

9                     On 6 September 1999, Mr Smith gave Ms Beadel a new roster which allocated her shifts on each day of the week, except Sunday, amounting, inclusive of meal breaks, to 27.5 hours from which she derives gross remuneration of $343.00 a week.  According to Ms Beadel, Mr Smith, when he handed her the new roster, said that "maybe in another month when the dust settles we may talk about another AWA."  Ms Beadel's affidavit also discloses that four new members of staff engaged by the Club, including two new supervisors, Angela Jones and Warwick Daly, commenced work on 13 September 1999. 

10                 Bruce Forbes:

Mr Forbes' evidence is similar to that of Ms Beadel in that, up to 6 September 1999, he had been rostered to work for four shifts a week amounting to 31.25 hours in one week and 28.5 hours in the other week and was paid a loading for hours during which he worked as a supervisor.  As a result, Mr Forbes received $583.00 gross in the first week and approximately $500.00 gross for each second week.  Mr Forbes claimed that, at the meeting on 30 June 1999, Mr Smith said that, if staff did not accept the offer embodied in the proposed AWA, the Club could cut their hours back.  Also, according to Mr Forbes, the third respondent, Mr Somers, who was the Club's Duty Manager, told him on four separate occasions that "the Club could and would cut our hours if we did not sign the AWAs." 

11                  Mr Forbes also confirms Ms Beadel's evidence that, at a meeting in August 1999, Mr Smith said that employees who did not sign AWAs would lose their supervisory shifts.  Mr Forbes also received a new roster on or about 7 September when, he claims, he was told by Mr Smith that "when things cool down, down the track we could look at re-negotiating the AWA."  Mr Forbes' new roster provided for four shifts from Tuesday to Saturday each week amounting to a total of 24.25 hours yielding a gross remuneration of approximately $266.00 a week. 

12                  Damian Beadel:

            Mr Beadel is the brother of the third applicant, Kathleen Beadel.  Between May and 13 September 1999, he was rostered to work one Tuesday shift, a shift on Saturday which varied in duration between the first and second weeks and a shift of 8.25 hours every second Sunday.  Those arrangements provided him with a total of at least 34.75 hours a fortnight and gross remuneration of $401.00 for the first week and $192.00 for each other week.  After the meeting of 30 June 1999 when Mr Beadel was given his copy of the proposed AWA, he claims he was told by Mr Somers that he was still on three months probation and should think long and hard about signing the AWA. 

13                  Under a new roster applicable after 15 September 1999, Mr Beadel has apparently been given 10 hours of work in each of the weeks beginning 13 and 20 September, 8 hours in the week beginning 27 September, 2 hours in the week beginning 4 October and 10 hours in the week beginning 11 October.  For those weeks, his gross remuneration has varied from $38.21 to $177.31 a week. 

14                  Natalie Sims:

            This applicant was employed by the Club from April 1995 except for a period of absence from June 1998 to May 1999 while she was expecting, and after the birth of, her daughter.  From May to 13 September 1999 she was rostered to work a total of 25 hours in the first week and 19 hours in each other week for which she received a gross income of approximately $336.00 and $307.00 respectively.  Her account of the meeting of 30 June 1999 corresponds with that of other witnesses with the addition that those in attendance were told by Mr Smith that the proposed AWA offered an hourly rate of $16.20 for all hours worked, including annual leave and sick leave, whereas those who elected for permanent employment under the Award would receive $11.75 an hour plus annual leave and sick leave.  Shortly after that meeting, Ms Sims claims, Mr Somers told her in a crudely sexual idiom that if people did not sign the AWAs he could be very difficult with the roster.  Ms Sims also claims that she was told that, unless she signed the AWA, she could lose shifts which gave her the possibility of working "until required" and would lose her Saturday shift and probably her Friday shift.  When she questioned the fairness of that proposal, she was told by Mr Smith, on her account "that's how it is, but if you sign the AWA you'll keep all your shifts."  She was later given a new roster to take effect from 13 September 1999 which allocated her a total of 15.25 hours from Tuesday to Friday each week from which she would derive a gross wage of $179.18 a week.  She claims that, when she told Mr Smith that she could only work at nights or weekends, he said that she should do the new shifts for a month or so and see how it settled down and that things might change in a month or so.  When she complained that she could not work the new shifts because of child care responsibilities, Mr Smith, on her version, said that he had a club to run and that she should let him know what she was going to do.  On 14 September 1999, Ms Sims advised Mr Davis, the Club's President, of her resignation and did not work under the new roster which commenced on 13 September 1999. 

15                  Belinda Mallinson:

            This applicant, from June to 13 September 1999, was rostered to work a total of 26.5 hours on Monday, Tuesday, Wednesday, Friday and Sunday of each week for which she received a gross remuneration of $473.62.  She has deposed that, after being presented with the proposed AWA on 30 June 1999, she was repeatedly asked by Mr Somers whether she was going to sign it, and was told which members of staff had already signed.  On those occasions, she says, "he told me that I would get any hours that I wanted if I would sign the AWA." 

16                  On 31 July 1999, when asked by Mr Somers why she still had not signed the AWA, Ms Mallinson expressed her dissatisfaction with the pay rates and unbroken hours of work it provided and was told that she should approach Mr Smith to change some of the things in the AWA which she did not like.  However, she claims, she was told that she could not negotiate the rate of pay available under the AWA.  Later on the same evening, according to Ms Mallinson, when she told him that she did not intend to sign the AWA, Mr Somers replied that he was not trying to be nasty but that she should start looking in the papers for a new job.  He further said, Ms Mallinson has deposed, that he had done up the new rosters that day and that, although he had tried to be really good with her hours, had only given her 13 hours a week, whereas "Julie" and "Jenny" had signed AWAs because he had guaranteed them all the hours they wanted.  Mr Somers also suggested, according to Ms Mallinson, that if she were to see Mr Smith on the following Monday and agree to the AWA, he would give her whatever hours she wanted and went on to indicate the shifts which she would lose if she did not sign the AWA.  Ms Mallinson also claims that her boyfriend, Brett, was pressed by Mr Somers to get her to sign an AWA because "she's one of the ones we want to keep".  Later, on 1 August 1999, Ms Mallinson claims, she was approached by Mr Somers who apologised for speaking to Brett about the AWA but suggested that if she loved Brett as much as she said she did, she would do what he (Brett) said and sign the AWA. 

17                  Ms Mallinson also claims that at a meeting on 11 August 1999 attended by employees of the Club, Mr Smith, Mr Somers and Mr Sandall, it was indicated by Mr Smith that the AWA was no longer available but another could be offered in the future and that those employees who had not signed it would lose hours of work as he had advice from the Employment Advocate as well as legal advice that it was permissible for him to reduce their hours.  As well, according to Ms Mallinson, Mr Smith said that supervisors would probably lose their positions as the Club was hiring new supervisors. 

18                  On 6 September 1999 Ms Mallinson was provided by Mr Smith with a new roster which provided for her to work a total of 19.5 hours a week, inclusive of meal breaks, for which she would receive a gross remuneration of $255.55 a week.  She claims that, at that time, Mr Smith said that, as she had not agreed to the AWA, that was the roster which he had to give her but that in a month or so when everything settled down, the Club could see about having her sign an AWA which would be in exactly the same terms as previously offered.  When she asked whether she would get her hours back, he replied that she would get more hours and would probably get all her old hours back. 

19                  Samantha Shepherd:

Until 13 September 1999, this applicant had been rostered to work 32.75 hours a week for which she received gross remuneration of $433.00.  She attended the meeting on 30 June 1999 described by other applicants and says that a few days later she was told by Mr Somers that, since she was getting married, she was better off signing the AWA.  Mr Somers also said, according to Ms Shepherd, that he could not guarantee that she would keep her hours and could not give her an estimate of how many hours she would lose but she would lose some.  On 7 September, Mr Smith handed Ms Shepherd a new roster allocating her a total of 19 hours a week with no Saturday work.  Ms Shepherd then told Mr Smith that she could not survive on $180.00 a week to which he allegedly replied that there would be another chance to sign the AWA but he did not know when and that when things settled down she might get more shifts.  In fact, Ms Shepherd's gross remuneration under the new roster is $206.65 a week. 

20                  THE CLUB'S EVIDENCE IN RESPONSE:

            Affidavits have been filed on behalf of the Club, including one by Mr Smith sworn 12 October 1999, in which he explained that the re-arrangement of the Club's rosters has been prompted by the variation to the Award which came into operation on 22 December 1998.  Before that variation, part-time employees could be employed for not less than 3 hours nor more than 8 hours a day on not more than 5 days a week and for not less than 15 hours nor more than 30 hours a week.  Work in excess of the prescribed weekly maxima attracted overtime penalty rates.  As well, part-time employs received a loading of ten per cent on the ordinary hourly rate prescribed for the relevant classification. 

21                  The applicable variation to the Award was embodied in a new cl 10 which, so far as is relevant, has been reproduced earlier in these reasons.  As I understand it, the principal concern of the Club was that regularly rostered employees, including the individual applicants, who were being paid as casuals, were, according to advice received by the Club from the Licensed Clubs' Association of Victoria ("the LCAV"), should properly have been classified as permanent part-time employees with pro-rata entitlements to annual and sick leave and public holidays.  That mistake had occurred quite independently of the variation of the Award which came into effect on 22 December 1998.  However, that variation had the effect that permanent part-time employees who worked for any time not specified in their agreed, written rosters, would be entitled to overtime at penalty rates.  That entitlement, as the Club perceived it, deprived it of the "flexibility" to have employees work beyond the rostered end of the shift "until required" or "until closing" without attracting what is seen as an uneconomic liability for overtime.

22                  That concern led the Club, in February 1999, to develop, in conjunction with the LCAV and its industrial relations advisers, draft AWAs of which a final version was produced on 7 June 1999.  Mr Smith attended the meeting on 30 June 1999 at which AWAs were presented to the Club's staff.  His account of that meeting includes these paragraphs:

"15.     The reason given at the meeting for the need for changes to the conditions of employment was that many of the staff of the Club, whilst being paid as casual employees, were in fact part time employees.  However, given the nature of the business of the Club, it required a high degree of flexibility in the working hours of its employees which could not be achieved under the conditions prescribed for part time employees under the new Award.  I then explained to the employees that an option to employing them as part time employees would be employment under the proposed AWAs.  This would allow for more flexible working hours similar to that of a casual employee, but with the rate of pay loaded for the various benefits of a regular full time or part time employee, being holiday pay, sick pay, and penalties for working outside of ordinary hours.

......

18.       Prior to the conclusion of the meeting on 30 June 1999, I emphasised to all employees that:

·        Arising out of this initiative, no employees would lose their jobs;

·        All employees would be included in staff training initiatives, whether they were part time employees or employed under the terms of the proposed AWAs;

·        If an employee declined to agree to be bound by the proposed AWAs, they would continue to be employed under the terms of the new Award.  However, having regard to the restrictive operation of Clause 10 of the new Award, being that there could be no variation to hours of work without written agreement from the employee or the payment of overtime, that changes to rostered hours must occur.  In this regard, I urged the employees to closely examine the new Award in regards to the employment of part time employees;  and

·        Employees had fourteen (14) days before they were required to make a decision about whether they would be bound by the proposed AWAs, to carefully read the information manual referred to in paragraph 15 hereof and if necessary, to take advice from either myself, parents, accountants, unions and/or solicitors."

23                 In response to the allegations of the individual applicants, Mr Smith has generally not denied that they were told that their hours of work might be reduced if they did not enter into AWAs.  He emphasised that he told all of the applicants that if they did not enter into an AWA, the pre-existing casual rate would no longer apply because they were entitled to be remunerated as permanent part-time employees under the Award.  Mr Smith has repeatedly deposed that any reduction in the hours allocated to the applicants has not been attributable to their failure to enter into AWAs but was, as he said in relation to Ms Beadel, "as a result of the restrictive requirements of Clause 10 of the new Award having regard to the operational requirements of the Club."

24                  Mr Smith has acknowledged that new rosters were prepared to take effect from 13 September 1999.  He has explained that employees, including the individual applicants, who have not entered into AWAs, have been given fixed hours of work whereas those who have entered into AWAs have been rostered for some shifts "until required" or "until close".  However, Mr Smith's affidavit does not condescend to detail whether, apart from the extra hours which might be worked under those arrangements, employees on AWAs have been allocated the same, increased or reduced hours compared with those for which they had normally been rostered before 13 June 1999.  In that context Mr Smith has deposed:

"40.     On or about 6 September 1999, new rosters were posted which reflected the new working arrangements at the Club, to take effect from 13 September 1999.  These rosters took into account the fact that a number of employees had agreed to be bound by the proposed AWAs and a number of employees had declined to be bound by the proposed AWAs.  These rosters applied to the Second to Eighth Named Applicants, together with all other employees of the Club."

25                  Mr Somers denies the allegations against him that he pressed any of the individual applicants to sign AWAs.  Indeed, he has deposed "At no time do I recall asking any staff member to sign the AWAs."  However, Mr Somers acknowledges that, on instructions from Mr Smith, he mistakenly reminded Mr Beadel that he was still on three months probation.  Mr Somers has strenuously denied using to Ms Sims the crude sexual term which she attributed to him or claiming any power to influence the terms of the roster.  He went on to depose, in respect of Ms Sims:

"32.     Natalie asked me how her roster would change if she didn't sign the AWA.  I told Natalie that if she did not sign she would be placed as a Regular Part-time Employee as per the Licensed Clubs (Victoria) Award and as such she would have set start and finish times each shift.  This would make it very difficult for a regular part-time employee to do open-ended shift and people who sign the AWA would obviously have a lot more flexibility.  I told Natalie there is a possibility she might lose some hours due to the lack of flexibility of being a regular part-time employee.  I did not tell Natalie that she would lose her Friday or Saturday shifts as alleged.  I had no idea what the roster was going to be.

33.       Natalie said that she didn't think this was very fair and I explained that unfortunately that's how it is.  Natalie asked me if she would keep all her shifts if she signed the AWA.  I told her that she would have a lot more flexibility if she signed the AWA."

26                  In relation to the effect of the new rosters and the need for full-time supervisors, Mr Somers has deposed:

"38.     Most regular part-time staff have not lost many hours but they are being paid less as per the Award.  However, they will receive holidays, leave loading and sick days under their new classification as per the award.

39.       I felt our supervisor system was not working as we had different supervisor's [sic] everyday.  I also felt Andrew, Kathleen and Bruce were not doing their jobs as supervisors properly as I often had to remind them not to stay behind the bar talking when there was work to be done on the gaming floor.  From this it became clear to me that the Club needed to obtain better-qualified and full-time supervisors who did not perform grade 3 and/or grade 4 duties from time to time."

27                 There has also been filed on behalf of the respondents an affidavit of Anthony David Quintner, an officer of the Service Industry Advisory Group Pty Ltd which has been retained by the LCAV to provide industrial relations advice to the Club.  Mr Quintner has corroborated the evidence of Mr Smith about the development, on behalf of the Club, of proposed AWAs to regulate the terms and conditions of its employees.  He has deposed that his instructions were to include in the proposed AWAs an "all up" rate of pay of $16.50 an hour for Grade 3 employees and $18.00 an hour for supervisors, both rates to be inclusive of entitlements to annual leave and sick leave and weekend and evening penalty rates.  Mr Quintner acknowledged that he addressed a meeting of Club employees and its management staff on 30 June 1999 and said that "staff were advised that their present employment status would alter whatever action they took."

28                  As well, there have been filed on behalf of the respondents affidavits from various employees of the Club who describe the meeting of 30 June 1999 and emphasise that no employees were threatened with the loss of their jobs if they refused to sign AWAs.  Those employees disavowed any pressure to sign an AWA and one of them, Ms McGrath, did not sign one.  Significantly, there is no reference in any of these affidavits to any suggestion that the hours of work of any employee who did not sign an AWA would be reduced.  One of these employees who did sign an AWA, Mr Daly, has deposed:

"Personally the AWA meant that I felt more secure in my employment and that the new arrangements was a commitment to my employment for three years.  I was not concerned about any changes to my hours of work, particularly as there was never any guarantee that I would get specific hours of work on a weekly basis as there was never a permanent roster applying to staff generally, including me.  My wage rate would have been effected [sic], as I worked a lot on the weekends, but I felt that the wage increases to work completed on week days contained in the AWA compensated me for any loss of pay for weekend work.  In any case, I never had guaranteed weekend hours at the higher rate."

29                  Another such employee, Ms Thompson, deposed:

"The AWA didn't affect me as my hours of work didn't change.  Prior to this time, I did not work many hours on the weekend, so the reduction in the hourly rate for working the weekends did not effect [sic] me enough to not agree to the AWA.  I could see no reason not to sign the AWA."

30                 IS THERE A SERIOUS QUESTION TO BE TRIED?

            The notion of duress embodied in s 170WG(1) of the Act involves complex questions of fact.  In Schanka v Employment National (Administration) Pty Ltd [1999] FCA 1334 (24 September 1999) Moore J said, in para 36:

"The word “duress” is apt to describe the conduct of one party which bears upon another party.  That second party is subject to that conduct and subject to the duress.  The use of the word in this way can be illustrated from the following brief passage of McHugh JA in Crescendo Management v Westpac at 45-46:

“A person who is the subject of duress usually knows only too well what he is doing.  But he chooses to submit to the demand or pressure rather than take an alternative course of action.”"

31                  In the same case, Moore J said, at paras 38 and 39:

"Approaching the construction of s 170WG(1) with these principles in mind, it is necessary to consider not only its language but also its apparent purpose in the statutory context in which it appears.  Part VID creates a class of industrial instrument which depends upon the agreement of an employer and an employee.  Such an agreement is intended ordinarily to displace the effect of an award made under [the Act], a state award or agreement, or state law dealing with the same, and may displace certain Commonwealth laws dealing with the same subject matter as the agreement: see s 170VQ(2), s 170VQ(4) s 170VR(1) and s 170VR(4).  This process of individual agreement making is plainly intended to supplement if not displace, in appropriate circumstances, the determination of working conditions on a collective basis and a basis involving the intervention of an industrial tribunal including the potential exercise of arbitral powers.  Evident in this scheme is a policy that any agreement reached between an employer and an employee (or their agents) is reached through a process of real and not illusory negotiation and general agreement.  An aspect of that negotiation can include industrial action on the part of the employer or employee: see generally Div 8 of Pt VID, but constraints are placed on the nature of that action.  Apart from that element of coercive influence, the process is otherwise intended to be free bargaining.  So much is manifest by the provisions in Div 9 and other provisions: see s 170VR(4) which proscribe conduct which might otherwise militate against free bargaining.  Not only is conduct proscribed and provision made for the imposition of penalties, but provision is also made for the granting of injunctive relief preventing or restraining proscribed conduct: see s 170VZ.

It is consistent with this scheme, in my opinion, to give s 170WG(1) a broad and not narrow meaning.  That is, to view it as proscribing conduct occurring during the process of negotiation which could be prevented or restrained by injunction or in respect of which a penalty could be sought.  To treat s 170WG(1) as proscribing conduct which has, in fact, lead to an AWA being made by one party (or perhaps both) who has been overborne by another person would limit the utility of the provision as a means of ensuring free bargaining.  Effective injunctive relief would not be available to avoid an agreement being made which was the result of free bargaining if it was necessary to ascertain the quality of the consent as a condition precedent to establishing that the conduct was proscribed conduct.  Moreover it would only, after the event, expose a person to a penalty for engaging in conduct which has resulted in a process of bargaining at odds with the type of bargaining contemplated by Pt VID.  There is no compelling reason, in my opinion, apparent from the language of s 170WG(1) or the legislative scheme in which it appears to treat s 170WG(1) as limited in the way contended by ENA."

32                  His Honour then went on to refer to the reasons for judgment of R D Nicholson J in Maritime Union of Australia -v- Geraldton Port Authority [1999] FCA 899 (5 July 1999) and concluded at paras 42 and 43:

"In my opinion s 170WG(1), properly construed, applies to the conduct of a person applying duress irrespective of whether that conduct actually results in the making of an AWA and irrespective of whether, as a matter of fact, the party subjected to that conduct did not freely make the AWA if one was made.   

That is not to say that in ascertaining whether conduct contravened s 170WG(1), the potential effect of the conduct on the exercise of free will by the person to whom it is applied is irrelevant.  It plainly is in this way.  The conduct of the contravening party must involve illegitimate pressure.  I doubt that the mere fact that an employer offers employment on the basis that an AWA in certain terms must be made, is illegitimate pressure.  It would do no more than place the potential employee in the position of either declining or accepting the employment on those terms and regulated that way, that is by an AWA.  Something more is probably necessary and whether pressure is illegitimate will ultimately depend on the factual context in which the allegation of duress arises.  But it must be pressure that is likely to have the effect of denying the exercise of free will if an AWA was made.   It also must be intended to have that effect."

33                  It is undesirable, at this interlocutory stage of the present proceedings, for me to attempt to resolve the factual disputes which emerge from the evidence which I have rehearsed earlier in these reasons.  It is sufficient, for present purposes, to indicate that the evidence adduced on behalf of the applicants goes beyond a mere offer of employment on the condition that an AWA be entered into.  The individual applicants were all in an existing relationship of employment with the Club and, if their evidence be accepted, they were told that their hours of work would be reduced to their financial detriment unless they entered into an AWA.  Moreover, it seems clear that such a reduction in hours has occurred, although whether it applied equally to employees who entered into AWAs is not clear.  On the present state of the evidence, I consider it to be reasonably arguable that a threat was made to employees who declined to enter into AWAs that their hours would be reduced.  Moreover, the evidence permits a finding that a threatened reduction of working hours has actually occurred and has resulted in a reduction in remuneration, although not to the extent claimed by the applicants who have not credited the Club with the separate amounts payable for annual and sick leave and public holidays under the Award which they did not receive while paid as casuals.

34                  If it be accepted that Mr Smith has held out the prospect of negotiations for AWAs to be reopened after "the dust has settled," it is also arguable that the initial threat is still operative with the potential to induce one or more of the individual applicants to enter into an AWA to achieve a return to something like the hours of work available to that applicant before 13 September 1999. 

35                  In these circumstances, I am satisfied that there is a serious question to be tried as to whether the Club has contravened s 170WG(1) and is continuing to contravene that sub-section by applying economic pressure to the individual respondents to enter into AWAs.

36                 BALANCE OF CONVENIENCE

As I understand it, the principal, if not the only, inconvenience which will be suffered by the Club if interlocutory orders are made which will restore the individual applicants to the position which they occupied before 13 September 1999 will be the financial burden of paying the individual applicants under the Award for work done in addition to their present rosters.  The extent, if any, of that expense has not been demonstrated.  It may even be that the cost to the Club of having extra hours worked by employees who have not entered into AWAs and thereby attracted the higher "all in rate" will not be significantly greater.  On the other hand, if no interlocutory orders are made, the loss to the individual applicants from the inability to work their previously rostered hours may well be irremediable as the Act makes no provision for compensation to an employee injured by a contravention of s 170WG.  When it is borne in mind that any financial loss to the Club, if any interlocutory injunction be ultimately dissolved, can be defrayed by enforcing the undertaking as to damages which I have extracted from the Union, the balance of convenience cannot be said to be against the grant of interlocutory relief. 

37                  FORM OF ORDERS

            In framing the orders which I pronounced yesterday, I have excluded any right of the individual applicants to be paid the supervisory loading for any hours during which they may be rostered to work in conjunction with the newly appointed full-time supervisors.  That exception, I consider, avoids the consequence of the Club's paying for supervisory services which it will not receive, or acting in breach of its contracts of employment with the newly appointed full-time supervisors.  As I understand the evidence, none of the second, third or fourth applicants had an irrefragable right into the future to be given supervisory work or receive the loading.

38                  I have also declined the invitation to frame an interlocutory injunction restraining the Club, pending the hearing and determination of this application, from terminating the employment of any of the individual applicants.  There is no evidence that any of those applicants has been threatened with termination of employment unless he or she enters into an AWA or otherwise.  To grant an interlocutory injunction in the terms sought might give rise to factual disputes which would otherwise be outside the jurisdiction of this Court and in which the normal onus of proof might be reversed.  Should it be perceived that an actual or threatened termination of employment is related to the failure of any of the individual applicants to enter into an AWA, relief against that arguable form of duress can be sought pursuant to the liberty to apply which I have reserved.

39                  I have given directions for the completion of interlocutory steps in this application designed to its being listed for trial at the earliest available date in the new year.

Associate:

Dated:              18 October 1999