WA resort fails in two Supreme Court employment matters

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WA resort fails in two Supreme Court employment matters

The Court of Appeal in Western Australia has decided against the employer in two cases involving the Burswood Casino and related entities.

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The Court of Appeal in Western Australia has decided against the employer in two cases involving the Burswood Casino and related entities.

Failure to terminate expired WA agreement no barrier to new award

The Court of Appeal (Supreme Court of WA) has found that although an expired agreement had not been effectively terminated under the relevant legislation, the union could nevertheless lodge an application for a new award to replace the agreement.

The employer's argument was that there was no industrial dispute as the agreement was continuing at the time the application for the award was submitted by the union.

Background

The union lodged an application before the Commission in Court Session for a new award to apply to employees of the employer.

The employer had been a party to an industrial agreement with the union known as the 'Burswood International Resort Casino Employees Industrial Agreement 2001'. That agreement expired on 30 June 2002.

The application for a new award to replace the 2001 agreement bore a date stamp of the Western Australian Industrial Commission of 10 July 2002, that is, 10 days after the expiry of the 2001 agreement.

In the new award the union sought conditions similar to the 2001 agreement, but with a number of minor additions, including increases to the rates of pay and journey cover.

The proposed new award was to replace an earlier award called the 'Burswood Island Resort Employees Award' and the 2001 agreement. The new award was to commence from the first pay period after 1 July 2002.

In the Commission in Court Session the employer contended that the court had no jurisdiction to determine the application because the 2001 agreement remained in force. It was submitted that there was no 'industrial matter' within the meaning of that term in sec 29(1)(a) of the Industrial Relations Act 1979 which could be referred to the Commission for determination.

Counsel for the employer relied upon the decision of the Commission in Court Session in the matter of Australian Liquor, Hospitality & Miscellaneous Workers Union, WA Branch v Activ Foundation Inc (2000) WAIRC 00472; 80 WAIG 4994.

Justice Scott - for union's case

Justice Scott commented:

'The distinction between that case [noted] and the one presently under consideration is apparent. The enterprise bargaining agreement, so far as the HSOA was concerned, was still current at the time when the HSOA sought to insert the salary packaging provision into the award. In those circumstances, in my view, it was open to the Commission in Court Session to conclude that such a provision should not be inserted until the HSOA had taken steps to withdraw from the enterprise bargaining agreement.

'As I understand the reasons of the Commission in Court Session in that case, so far as the HSOA was concerned, it was still bound by the terms of the agreement which did not include the salary package agreement. It remained bound by that agreement until it took steps to retire therefrom.

'Those steps had not been taken and the agreement was still current. In my view, that is factually different to the case presently under consideration. Here the 2001 agreement had expired at the time at which the respondent lodged its application for the award. Accordingly, in my view, the provisions of s 41(8) of the Industrial Relations Act(WA) ... conferred upon the Commission jurisdiction to determine such an application after the expiration of the industrial agreement.'

Justice Hasluck - for union

Justice Hasluck stated:

'... there is a difference of opinion, or dispute, between the parties about issues referable to the employment. The dispute can properly be characterised as a 'matter', and the nature of the dispute makes it an industrial matter. Section 23(1) provides that the Commission has authority to enquire into and deal with industrial matters. I am therefore not persuaded that the Commission does not have jurisdiction to deal with the application in the present case.

'I would dismiss the appeal.'

Justice Heenan agreed with Justice Hasluck.

See: Burswood Resort (Management) Ltd -v- Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch [2002] WASCA 355 (Scott, Hasluck, Heenan and Parker JJ) (18 December 2002).

Better conditions awarded after company restructure to reduce conditions

The Court of Appeal (Supreme Court of WA) has found that the Industrial Relations Commission (WA) in Court Session was entirely justified in its conclusion that to allow certain employees to remain employed under an award or on AWA agreements would have created significant inequities. There were differences in wages and conditions between those employees and the employees of an associated company who were governed by a collective enterprise agreement. The Commission in Court Session was anxious to avoid that anomaly.

The employer had restructured its corporate entities and in doing so the employees (the subject of this appeal) had been made redundant and were then offered positions working for a new company on lower wages and less advantageous conditions.

Appeal

In its decision the Commission in Court Session agreed to issue an award to cover the employees of the appellant company (the new company). The award terms were substantially similar to the terms of an agreement between the respondent union and Burswood Resort (Management) Ltd ('BRM') ('the 2001 agreement') registered in the WA Industrial Commission on 24 August 2001.

The grounds of appeal were essentially based on the argument that there was a miscarriage in that the Commission in Court Session relied upon findings that a reason for creation of the company was to reduce the terms and conditions of employment from those in an industrial agreement that another employer, Burswood Resort (Management) Limited ('BRML'), had agreed with the union.

Background

Prior to the creation of the present company, staff employed at the Burswood Casino who worked in the food and beverage and bar operations were employed by BRM. That company and the present union had been involved in a number of industrial disputes which ultimately led to the 2001 agreement being concluded between BRM and the union.

That agreement provided the employees of BRM with wages and conditions that were in excess of those normally applicable to workers in the same industry governed by the provisions of the Restaurant, Tearoom and Catering Workers' Award of 1979 ('RTC Award').

The present appellant, Burswood Catering and Entertainment Pty Ltd ('BCE'), was registered on 20 September 2001, just less than a month after the agreement between BRML and the present union was registered.

The facts involved a proposed redevelopment that was substantial, costing $96,000,000. The redevelopment created a large new eating area within the casino complex. As a consequence of the creation of the new eating area, a number of the existing restaurants were closed and the employees made redundant. The employees previously employed in those restaurants by BRM were then offered new positions with BCE. The positions with BCE, however, were not covered by the 2001 agreement and were offered either on the basis of Australian Workplace Agreements (AWA) or on the terms of the RTC award.

Decision of Court of Appeal

The Presiding judge, Justice Scott, noted that the Commission in Court Session had held that the evidence showed that a reason to create BCE was indeed, as the union alleged, to reduce the terms and conditions of employment of staff providing food and beverage services in at least the new facilities and to have a wage structure comparable to catering contractors for work performed outside the Resort.

The Presiding Judge, Justice Scott, noted:

'In my view, taking all of the evidence into account, the conclusion reached by the Commission in Court Session... were conclusions properly open on the evidence. In my view, the Commission in Court Session appreciated the serious nature of the inference that it was asked to draw and did not apply the wrong test in law in drawing such inference.'

Justice Scott then considered the ground of appeal that the wage fixing principles had been breached in granting increases in excess of the safety net. In the process of considering this argument, the issue of looking behind the corporate veil arose.

Justice Scott ruled that it could not be said that, taking all of the matters into account, the Commission in Court Session was in error in looking behind the corporate veil and determining that BCE was an agent of BRM.

He concluded:

'The ultimate issue then was whether in the making of a new award based upon that reasoning the Commission in Court Session was in error.

'In assessing that submission, it must, of course, be accepted that the provisions of the award were such that if it applied to all work by all employees of BCE, BCE would not be competitive with other companies in the catering industry and so would have difficulty competing with outside companies where the employees were governed by the RTC award.

'On the other hand, the new award granted to the employees of BCE terms and conditions which were over and above those enjoyed by other employees in the same industry governed by the RTC award. That situation was, however, allowed for by the terms of the award.

In my view, the Commission in Court Session was not in error in concluding that there was no breach of wage fixing Principle 10 in all the circumstances of this case. The terms of the award expressly excluded work done in competition with outside catering contractors.

...

In my view, ... the Commission in Court Session was entirely justified on all of the facts and circumstances of this case. To have allowed the BCE employees to remain employed under the RTC award or on AWA agreements would have created significant inequities between those employees and the employees of BRM governed by the 2001 agreement. The Commission in Court Session was anxious to avoid that anomaly and, in my view, in making the award the Commission in Court Session reached an appropriate conclusion.'

Justice Scott dismissed the appeal.

Judges Parker and Hasluck agreed that this appeal should be dismissed for the reasons given by the Presiding Judge.

See: Burswood Catering and Entertainment Pty Ltd -v- Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch [2002] WASCA 354 (18 December 2002) - Scott, Parker and Hasluck JJ.

 
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