Phillips v Crowne Plaza Hotel [2006] NSWIRComm 189 (26 June 2006)

Last Updated: 26 June 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Phillips v Crowne Plaza Hotel [2006] NSWIRComm 189

FILE NUMBER(S): IRC 106

HEARING DATE(S): 1/6/06

DECISION DATE: 02/06/2006

EX TEMPORE DATE: 01/06/2006

PARTIES:

APPLICANT

Karen Anne Phillips

RESPONDENT

Crowne Plaza Hotel, Terrigal

JUDGMENT OF: Harrison DP

LEGAL REPRESENTATIVES

APPLICANT

Ms K Phillips

RESPONDENT

Solicitor

Mr P Brown

Baker & McKenzie

CASES CITED:

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

- 3 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: HARRISON DP

FRIDAY 2 JUNE 2006

Matter No IRC 106 of 2006

KAREN ANNE PHILLIPS AND CROWNE PLAZA HOTEL

Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2006] NSWIRComm 189

1 Ms Karen Phillips worked at the Bodhi Spa within the Crowne Plaza Hotel, Terrigal from July 2004 to December 2005. Ms Phillips contends that she was unfairly dismissed from that employment and seeks compensation of $7,752.00 calculated by her as her potential earnings in the tourist season from 12 December 2005 to 4 February 2006.

2 Attempts at resolution of the matter by conciliation conducted by Commissioner Stanton were unsuccessful and the matter was scheduled for Hearing on 1 June 2006 by the Commission as presently constituted.

3 A further attempt at conciliation was made by reference of the matter to Stanton C. on the morning of 1 June 2006 which also proved unsuccessful.

4 In arbitration Mr Brown, Solicitor of Baker & McKenzie, appeared on behalf of the respondent with Ms M Hurley-Smith and Ms J Ashton.

5 Ms Phillips appeared on her own behalf with her mother, Mrs P Phillips.

6 Mr Brown raised two issues of jurisdiction, detailed in correspondence of 17 May 2006 (exhibit 4) in the following terms:

The two jurisdictional issues are as follows:

(i) the Respondent contends that at all relevant times the Applicant was not an employee for the purposes of the Industrial Relations Act 1996 (NSW); and

(ii) the Respondent is bound by the Federal Hospitality Industry Accommodation Hotels Resorts and Gaming Award 1998. Consequently the Applicant was entitled to make an application to the Australian Industrial Relations Commission and therefore Part 6 of the Industrial Relations Act 1996 (NSW) does not apply to the Applicants application.

7 Mr Brown submitted that even if the Applicant were an employee, which he put was contraindicated by her application wherein she detailed at question 20 that she "worked under my own ABN and paid my own P/L Insurance. Earning $34- per hour", the Commission does not have jurisdiction by operation of the Federal Hospitality Industry Accommodation Hotels Resorts and Gaming Award 1998 ("the Award").

8 Mr Brown brought evidence from Ms Julie-Anne Ashton, employed in the position of Manager, Talent Development by the Respondent.

9 Exhibit 1 is correspondence from the Australian Hotels Association (NSW) ("the AHA") confirming membership of the Respondent for 2004, 2005 and 2006, which was confirmed by Ms Ashton.

10 Exhibit 2 is a copy of the Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1995 [Print M7207 [H0008]], as varied, an award of the Australian Industrial Relations Commission (AIRC). Clause 6.1.2 prescribed respondency to the award to include "the Australian Hotels Association, its Federal and State officers, and its members".

11 The evidence of Ms Ashton is that if Ms Phillips were an employee she would be employed as a Leisure Attendant Grade 2 in accordance with clause 18, Classifications and Wage Rates of the Award.

12 Ms Ashton identified three persons whom she put were employees engaged by the Respondent pursuant to the Award who carry out the same duties and functions that Ms Phillips did. Ms Ashton's evidence is that Ms Phillips' status as a contractor was distinguishable with reference to certain rights, activities and benefits afforded employees and not contractors.

13 Ms Phillips questioned the distinction, asserting that at all material times she was an employee, however, conceded that the work she carried out was the same work as the employees identified by Ms Ashton.

14 Mr Brown sought the proceedings be discharged for want of jurisdiction.

15 The evidence clearly establishes that Crowne Plaza Hotel Terrigal is by virtue of its membership of the AHA respondent to and covered by an award of the AIRC; and that the duties and functions of Ms Phillips fell within a classification within that award. Accordingly, any employment would be regulated by the Workplace Relations Act 1996.

16 In the absence of jurisdiction it is not appropriate to address the question of whether Ms Phillips was a sub-contractor or an employee.

17 Matter No IRC 106 of 2006 is discharged for want of jurisdiction.

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LAST UPDATED: 08/06/2006