THE INDUSTRIAL MAGISTRATE'S

COURT OF WESTERN AUSTRALIA

HELD AT PERTH

       Claim No M 284 of 2001

Date Heard: 21 February 2002

Date Delivered: 7 March 2002

BEFORE:  G. Cicchini I.M.

B E T W E E N :

The Australian Liquor, Hospitality and Miscellaneous Workers Union,

 WA Branch

Claimant

and

Burswood Resort (Management) Ltd

Respondent

Appearances:

Mr J Rosales-Castaneda, of Counsel, appeared for the Claimant

Mr DM Jones of the Chamber of Commerce and Industry of Western Australia (Inc) appeared as agent for the Respondent.

REASONS FOR DECISION

The Facts

The Respondent is, and was at all material times, a corporation carrying on business in Western Australia.  It manages the Burswood International Resort Casino.

The Claimant is an organisation of employees (a union) registered pursuant to the provisions of the Industrial Relations Act 1979 (WA).  The Respondent on or about 16 February 1995 employed one of its members, namely Pamela Donathy.  Since 3 June 1996 she has been employed in the dry-cleaning department as a Laundry Attendant Grade 2.

At the material time (5 December 2000) Ms Donathy’s employment with the Respondent was governed by the Burswood International Resort Casino Employees Industrial Agreement 2000 (the agreement) which was registered by the Western Australian Industrial Relations Commission on 30 December 1999.

By letter, which is undated but transmitted by facsimile on 5 October 2000, Paul Justice, an organiser with the “Burswood Resort Union of Employees” (BRUE) wrote to the Respondent seeking approval to hold a paid union meeting on 5 December 2000 between the hours of 9.00 am and 12 noon.  The request was purportedly made pursuant to clause 34 of the agreement.

On 16 October 2000, Mr Paul Kennedy, on behalf of the Respondent, replied in the following terms:

“Dear Mr Justice

 I acknowledge receipt of a facsimile transmission dated 5 October 2000 via your organisation from ‘BRUE’, wherein notification is purported to be given of a Union meeting on 5 December 2000 pursuant to the Burswood International Resort Casino Industrial Agreement 2000.  As you are aware, ‘BRUE’ is not a registered party to this industrial instrument and has no standing to give such notice.

 Provided the necessary requirements of Clause 34 of the Industrial Agreement are appropriately complied with, including correct notification, I have no difficulty with the date you have suggested.  I trust you will advise me of your further arrangements as the date gets closer.  Unfortunately, I am unable at this stage to provide a venue for this meeting.

Yours sincerely”

On 23 October 2000, Mr Justice again wrote to the Respondent, however, this time in his capacity as an organiser with the Claimant.  He said in his letter:

“Dear Mr. Kennedy

 I am writing in regards to the paid Union meeting that the Australian Liquor Hospitality and Miscellaneous Workers Union is entitled to under clause 34 of the Burswood International Resort Industrial Agreement 2000.

 As previously advised the Union intentions to hold the paid Union meeting on the 5th December 2000 between the hours of 9.00 am and 12.00 pm.  I note in your letter dated 16th October that this date is expectable (sic) to the company.  As you are unwilling at this stage to provide a venue if you cant provide this undertake by the 30th October the Union will make it’s own arrangements.

 If there is anything you wish to discuss regarding the contents in this letter please contact me on 9388 5400 or fax 9382 3986”

The Respondent did not reply.

BRUE in its capacity as “a section of the LHMU” advertised that a paid union meeting was to be held at G.O. Edwards Park (opposite Burswood on Great Eastern Highway) on Tuesday, 5 December 2000 between the hours of 9.00 am and 12 noon.  The reason given for holding the meeting was, inter alia, to discuss the renewal of the industrial agreement.

In its flyer to employees concerning the meeting, BRUE, in its capacity of being a section of the Claimant made the following statement:

“All employees are encouraged to attend this important meeting.

 Employees covered by the Industrial Agreement who are rostered to work during the meeting time will be paid for attending the meeting

 BRUE wrote to Burswood asking that AWA employees who are rostered to work also be paid for attending.  Burswood has refused.

     BRUE members and

     Non-members welcome.”

(my emphasis added)

Employees were also advised that between 10.45 am and 12 noon there would be a sausage sizzle.

The meeting was, in fact, held on 5 December 2000 between the hours of 9.00 am and 12 noon at the place indicated.  Pamela Donathy attended that meeting.

Mr Justice testified that the actual meeting time was reduced because attendees had to change from their uniforms to ordinary clothing prior to the meeting and then change back into their uniforms following the meeting.  He told the Court that the formal part of the meeting, which included the delivery of speeches, concluded by 10.45 am.  Thereafter union business continued in the collection of signatures for petitions whilst the sausage sizzle took place.  Employees left the meeting by about 11.30 am so as to ensure that they were ready for duty at 12 noon.

At noon, Pamela Donathy returned to her workplace following the meeting.  Upon her return to her workplace she went to the staff dining room in order to take her half hour lunch break.  Her supervisor prevented her from doing so, and instructed her to return to work.  She returned to work as instructed.  She remained at work until 2.25 pm, being her normal finish time.

On the material day Ms Donathy had been rostered to work between 6.00 am and

2.25 pm.  On that day as on other days when she commenced at 6.00 am she was routinely rostered to take lunch at, or reasonably close to, 11.25 am.  That had been the case since at least October 1999.  The lunch break was for 30 minutes in accordance with clause 16(1) of the agreement.

Pamela Donathy was paid ordinary time rate of pay for that day.  She was paid her ordinary rate of pay for her work carried out between 6 am and 9 am and that carried out between 12 noon and 2:25 pm.  She was also paid her ordinary rate of pay for the period 9 am to 11.25 am whilst at the meeting.  She was not paid for her lunch break, which was rostered during the later part of the meeting.

Ms Donathy’s attendance at the meeting occurred with the concurrence of the Respondent.

The Issues

The Claimant contends that Ms Donathy was entitled to be paid for the full 3 hours during which the meeting took place.  It says that she was entitled to have her lunch break following the meeting and that the Respondent’s refusal to let her have her lunch break following the meeting resulted in Ms Donathy working the full day without a lunch break.  As a consequence she is entitled to be paid penalty rates in accordance with clause 16(1)(a) of the agreement for her work following the meeting.

Clause 16(1)(a) provides:

16.  MEAL AND REST BREAKS

(1)  (a)  Each employee, other than those employed in the classifications of Inspector and Croupier/Dealer, shall be entitled to an unpaid meal break of not less than 30 minutes nor more than 60 minutes which shall commence after completing not less than one hour 30 minutes and not more than 6 hours of any rostered shift.  Provided that where it is not possible to grant the meal break during the above prescribed period, the said meal break shall be treated as time worked and the employee shall, in addition to ordinary time rates, be paid 50 per cent of the ordinary hourly rate applying to such employee, until such time as the employee is released for a meal, or until the completion of the rostered shift, whichever is the sooner.

         (my emphasis)

The Respondent paid Pamela Donathy the ordinary rate of pay for the 2.5 hours she worked following the meeting.  The Claimant says that the Respondent, in fact, paid Pamela Donathy $29.56 for that period when it should have paid her $44.33 in accordance with clause 16(1)(a) of the agreement.  Accordingly it claims the difference of $14.77, which it says is owing to its member.

The Respondent denies that it has breached the agreement.  It also denies that it is liable to pay the $14.77 claimed.  The Respondent rejects the claim on two grounds.  They are:

1. That the meeting held on 5 December 2000 was not a meeting held pursuant to clause 34(4) of the agreement.  Accordingly the claim which is contingent upon the worker’s right to be paid for attendance at a meeting held pursuant to clause 34(4) cannot succeed: and

2. In the alternative, if it is found that the meeting is one within the ambit of clause 34(4), that Pamela Donathy was nevertheless not entitled to a lunch break following the meeting as she had already taken her lunch break during the course of the meeting.

Determination of the Issues

I shall deal firstly with the issue of whether the meeting held on 5 December 2000 was one held pursuant to clause 34(4) of the agreement.  In that regard a consideration of clause 34(4) is required.  It provides:

34. UNION DELEGATES AND MEETINGS

(1)      …

(2)      …

(3)      …

(4)      The Union shall be allowed to convene one “Union Meeting” each year, during ordinary working hours, in accordance with the following conditions:

(a)   At least fourteen days’ written notice of such meeting is given to the Company by the Secretary of the Union.

(b)   The duration of the meeting shall be 3 hours as a maximum, the employees returning to duty by noon.

(c)   Payment at ordinary time rate of pay to be made for the period that employees were rostered for duty.

(d)   Such Union meetings shall be held on weekdays, on other than a Thursday or Friday.

(e)   Payment of wages shall be made only upon the Company being in receipt of satisfactory evidence of the employee’s attendance at the meeting.

A consideration of the clause in the light of the correspondence passing between the parties (as contained in exhibit 4) reveals that subparagraph (a) of clause 34(4) was not complied with.  The Secretary of the union did not give written notice.  There was a fundamental flaw in the process in that regard.

In his letter to Mr Justice dated 16 October 2000, Mr Kennedy, on behalf of the Respondent made it patently clear that strict compliance with the provisions of clause 34 was required.  Any approval was subject to the same.

The letter to the Respondent dated 23 October 2000 from Mr Justice, in his capacity of organiser with the Claimant, did not comply with the requirements of the clause.  Accordingly, there was never any approval granted to hold the union meeting.

There can be no doubt that, as a matter of fact, a meeting organised by the Claimant was held on 5 December 2000.  There is also no denying that the Respondent authorised its employees to attend the meeting and that it paid them for their rostered work time spent at the meeting.  However, the Respondent was never under any obligation to do so. The Respondent’s act of allowing its employees to attend the meeting and paying them for their time there resulted not from any legal obligation but rather because it chose to do so.

The prerequisite requirement of proper notice to hold the meeting was never given.  Accordingly, approval to hold the meeting pursuant to clause 34 was never obtained.  The meeting was not held under that provision.  The meeting that proceeded was not a meeting falling within the auspices of clause 34.  It was a meeting held with the acquiescence of the Respondent but falling outside the agreement.  Accordingly, therefore, the claim made pursuant to clause 16(1)(a) falls away given that it is contingent upon Pamela Donathy attending a meeting held pursuant to the provisions of clause 34 of the agreement

I must say that I accept generally the submissions made by the Respondent on the issue.

Even if the Respondent had not been successful on that issue, it is evident that the Claimant’s claim cannot succeed in any event.  I say that because clause 34(4)(c) provides that payment at ordinary time rate of pay is to be made for the period that employees were rostered.

In this case Pamela Donathy was rostered to work until 11.25 am.  Her entitlement to pay was up until that time.  She then took a lunch break between 11.25 am or 11.30 am until 12 noon.  She chose to have her lunch at the park.  She did not present herself at the Respondent’s cafeteria.  Had she done so, the employer would have been required to supply her with a meal free of charge pursuant to clause 17 of the agreement.

The Respondent’s obligation was to pay her for such period of the meeting that she was rostered to work.  Indeed that was within the contemplation of the Claimant.  In its notice to employees the Claimant said:

“Employees … who are rostered to work during the meeting time will be paid for attending the meeting”.

The corollary of that is that if an employee was not rostered to work during the meeting, such employee would not be paid.

In this case, Pamela Donathy was not rostered to work for the period 11.25 am or 11.30 am to 12 noon.  That was her lunch break.  She was not entitled to be paid for that period.  Indeed she was not paid for that period.  In that regard I accept the evidence of Ms Drimatis on behalf of the Respondent.  I accept her explanation with respect to exhibit 5.  I accept that a close consideration of the same reveals that Pamela Donathy was not paid for the lunch period during which she attended the meeting.  I accept her evidence that the payslip is partially misleading.

It follows, therefore, that on the material date Ms Donathy took her lunch break prior to her return to her workplace.  Accordingly, she was not entitled to another lunch break.  Further, there is no evidence to suggest that her roster had been changed and that she was entitled to take her lunch break from 12 noon to 12.30 pm.  Clause 34 does not have the effect of changing or displacing the rostering arrangements.

In my view clause 34(4)(c) does not permit the interpretation sought by the Claimant.

I find that the Claimant has failed to prove its claim.

G Cicchini

Industrial Magistrate