100318934

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH

APPLICANT

 -v-

 BURSWOOD RESORT (MANAGEMENT) LTD

RESPONDENT

CORAM COMMISSIONER J L HARRISON

DATE OF ORDER THURSDAY, 18 SEPTEMBER 2003

FILE NO/S CR 101 OF 2003

CITATION NO. 2003 WAIRC 09414

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Result Order issued.

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Order

WHEREAS on 26 May 2003 the applicant applied to the Commission for a conference pursuant to Section 44 of the Industrial Relations Act 1979 (“the Act”); 

AND WHEREAS on 10 June 2003 the Commission convened a conference pursuant to s44 of the Act for the purpose of conciliating between the parties in relation to back pay owing to one of the applicant’s members, Mr Kieran Neal, and the possibility of re-deploying Mr Neal to suitable alternative employment with the respondent and the parties undertook to negotiate about the issues in dispute;

AND WHEREAS a report back conference was held on 16 July 2003 and the Commission was advised that the issues in dispute remained unresolved and the parties undertook to hold further discussions;

AND WHEREAS a further report back conference was held on 31 July 2003;

AND WHEREAS at the conferences held on 10 June 2003, 16 July 2003 and 31 July 2003 the Commission was informed that:

a) Mr Neal has been employed by the respondent for approximately 15 years.  From November 2000 to December 2002 Mr Neal was unable to perform his full duties as a croupier due to a work related injury.  As a result of Mr Neal’s workers’ compensation claim being settled in March 2003 the respondent has endeavoured to place Mr Neal into suitable alternative employment.

b)  On 23 June 2003 the respondent offered Mr Neal a position of Electronic Gaming Assistant and Mr Neal accepted this position however, the applicant and the respondent were in dispute about the terms and conditions of employment being offered to Mr Neal in relation to this position.

c)    On 31 July 2003 the applicant was advised by the respondent that if Mr Neal did not accept the Electronic Gaming Assistant position which had been created by the respondent and offered to Mr Neal on the respondent’s terms and conditions then his services would be terminated and that the respondent would not take such action without giving seven days notice of its intention to terminate Mr Neal.

d)    The applicant and the respondent remained in dispute about back pay owing to Mr Neal for hours that he was available to work and was not required by the respondent to work.

AND WHEREAS a further conference was convened on 1 August 2003 to hear from the parties in relation to whether or not the issues in dispute should be set down for hearing and determination;

AND WHEREAS having heard from the parties the Commission formed the view that in the circumstances the issues in dispute should be set down for hearing and determination and an interim order should issue to deal with Mr Neal’s employment status pending the outcome of arbitration of the issues in dispute;

AND WHEREAS the Commission formed the view that Mr Neal should be redeployed to the position of electronic gaming assistant on an interim basis and an order issued on 4 August 2003 in the following terms:

1. THAT Burswood Resort (Management) Ltd redeploy Mr Kieran Neal forthwith to the full-time position of Electronic Gaming Assistant under the terms and conditions as detailed in correspondence from Ms Kathleen Drimatis to the applicant dated 23 June 2003. 

2. THAT Mr Neal shall remain employed in this position under these terms and conditions whilst the Commission hears and determines the following:

a) Whether or not Mr Neal is owed wages for the hours that he has been fit to work but has not been offered work by the respondent.

b) The terms and conditions of employment that should apply to the work that Mr Neal is undertaking in his role as an Electronic Gaming Assistant.

AND WHEREAS on 6 August 2003 the respondent lodged an appeal against the decision of the Commission in relation to the order that issued in matter C101 of 2003 on 4 August 2003;

AND WHEREAS the Commission convened further conferences on 3 and 5 September 2003 and  the respondent argued that the issue of whether or not the respondent had an obligation to transfer Mr Neal to an alternative position should be included in the memorandum of matters for hearing and determination and as this was a matter initially raised by the applicant as an issue in relation to this dispute this issue was included in an amended memorandum of matters for hearing and determination which was issued to the parties on 8 September 2003;

AND WHEREAS at a hearing on 15 September 2003 the Full Bench of the Commission upheld the respondent’s appeal and the interim order was quashed;

AND WHEREAS on 17 September 2003 the Commission convened an urgent conference and was informed that Mr Neal was no longer undertaking the duties of the position of electronic gaming assistant and that he was currently not undertaking work related duties and therefore not receiving wages;

AND WHEREAS the respondent sought to adjourn the hearing in relation to the issues in dispute given that the Full Bench had not yet issued its reasons for decision in FBA 19 of 2003;

AND WHEREAS the Commission is of the opinion that an interim order is necessary to deal with Mr Neal’s current employment status pending the hearing and determination of the issues in dispute and that the hearing set down for 18 September 2003 be vacated as a result of further discussions of the issues in dispute and that the hearing should be re-convened as a matter of urgency;

AND WHEREAS a Speaking to the Minutes was held on 18 September 2003 in respect to the Minutes of Proposed Order that issued on 17 September 2003 and after hearing from the parties the Commission formed the view that amendments should be made to the proposed order;

NOW THEREFORE, the Commission having formed the view that in order for arbitration to occur to resolve the matters in dispute, and pursuant to the powers conferred on it under the Act, in particular s.44(6)(ba)(ii), hereby orders:

1. THAT on an interim basis the respondent continue to employ Mr Kieran Neal on a full-time basis under his existing terms and conditions of employment undertaking meaningful and appropriate duties which may include TAB duties and assisting with electronic gaming functions pending the outcome of arbitration in relation to this matter. 

2. THAT Mr Neal shall remain undertaking these duties until the Commission hears and determines the issues in dispute relating to the following:

a) If the Electronic Gaming Assistant position offered to Mr Neal and accepted by him remains available and is to be performed by Mr Neal, the terms and conditions of employment that should apply to the duties of this position.

b) Whether or not Mr Neal is owed wages for the hours that he has been fit to work but has not been offered work by the respondent.

3) The terms and conditions in Clause 17. – Meal and Rest Breaks of the Burswood International Resort Casino Employees Award 2002 No A4 of 2003 applicable to a Croupier/Dealer shall not apply to Mr Neal whilst performing duties other than those of a Croupier/Dealer.

4) Nothing in this order prevents the respondent from dismissing Mr Neal for misconduct.

5) A liberty to apply is reserved to the parties in the event of changed circumstances.             

COMMISSIONER J L HARRISON