Australian Workers' Union of Employees, Queensland v Southern Downs Regional Council [2017] QIRC 37

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Australian Workers' Union of Employees, Queensland v Southern Downs Regional Council [2017] QIRC 037 PARTIES: Australian Workers' Union of Employees, Queensland (Applicant) v Southern Downs Regional Council (Respondent) CASE NO: D/2016/99 PROCEEDING: Notice of Industrial Dispute DELIVERED ON: HEARING DATE: 5 May 2017 20 April 2017 HEARD AT: Brisbane MEMBER: Industrial Commissioner Black ORDER: 1. AWU interpretation of the award confirmed. Worker's overtime entitlement to be determined accordingly. CATCHWORDS: INDUSTRIAL DISPUTE – notice of industrial dispute – referral to arbitration – resolution of dispute turns on interpretation of overtime provisions of the award – separate periods of work performed on a Sunday - whether minimum payment prescribed is to be construed as a per day payment, not a per engagement payment. CASES: Industrial Relations Act 1999, s 229, s 230; Local Government Employees' (Excluding Brisbane City Council) Award – State 2003. APPEARANCES: Mr B. Watson, for the Australian Workers' Union of Employees, Queensland Mr R. Beer, for the Southern Downs Regional Council -- 1 of 8 -- 2 Decision Background [1] The parties to the subject dispute have been unable to agree on the correct overtime entitlements of a worker arising from his attendance at work on three separate occasions on Sunday 17 July 2016. Initially the disagreement was referred to the Commission by way of a dispute notification filed on 23 November 2016. However, when the dispute failed to settle at the conciliation stage, it was referred to arbitration. [2] The resolution of the dispute turns on the construction of clause 6.5.3 of the Local Government Employees' (Excluding Brisbane City Council) Award – State 2003 (the award). Clause 6.5.3 forms part of the overtime provisions of the award. The clause provides a basic overtime rate of time and a half for the first three hours and double time thereafter. However if overtime is required to be worked on a Saturday or a Sunday, the provisions are more beneficial to the worker. While the same rate is applied for Saturday overtime, a minimum payment of three hours is also prescribed. For Sunday overtime, a higher rate of double time applies as well as a three hour minimum. Clause 6.5 is set out below: "6.5 Overtime 6.5.1 All authorised time worked outside or in excess of the ordinary hours fixed in accordance with clause 6.1, on any one day, shall be deemed to be overtime. Except as provided, overtime shall be paid for at 1 1/2 times the ordinary rate for the first 3 hours and double time thereafter. 6.5.2 Overtime worked on Saturday shall be paid for at the rate of time and a- half for the first 3 hours and double time thereafter with a minimum payment of 3 hours at overtime rates. An employee shall not be entitled to a minimum payment in respect of each separate period of overtime: Provided that in the case of an employee required to remain on call and who is paid the allowance prescribed by clause 5.8.15 a minimum payment of 1 1/2 hours shall apply. No minimum payment shall apply where the overtime is continuous with an employee's ordinary hours of work. 6.5.3 Overtime worked on a Sunday shall be paid for at the rate of double time with a minimum payment of 3 hours at overtime rates. An employee shall not be entitled to a minimum payment in respect of each separate period of overtime: Provided that in the case of an employee required to remain on call and who is paid the allowance prescribed by clause 5.8.15 a minimum payment of 1 1/2 hours shall apply. -- 2 of 8 -- 3 No minimum payment shall apply where the overtime is continuous with an employee's ordinary hours of work. 6.5.4 Shift workers All authorised overtime performed by shift workers shall be paid for at the rate of double time. 6.5.5 Rostered day off An employee required to work on the rostered day off shall be paid at the rate of time and a-half for the first 3 hours and double time thereafter with a minimum payment of 3 hours.¿ An employee shall not be entitled to a minimum payment in respect of each separate period of overtime. 6.5.6 All work done during the normal meal break shall be paid for in accordance with clause 6.3. 6.5.7 In the case of an owner driver working overtime, overtime rates shall be paid on the wage of the driver and the use of the truck shall be paid in accordance with the hire rate as set out in clause 5.7.1. 6.5.8 Recall (a) An employee recalled to work overtime on one of their ordinary working days shall receive a minimum payment of 4 hours at the prevailing overtime rate. An employee shall not be entitled to a minimum payment in respect of each call-out on the same day: Provided that in lieu of the 4 hours' minimum payment mentioned above, where the employee was notified of the need to return to perform work prior to the completion of the ordinary hours on the day in question or where the employee is required to remain on call and is paid the allowance prescribed by clause 5.8.15, a minimum payment of 2 hours at the prevailing overtime rate shall be payable. Employees recalled to work overtime may be required to perform additional work of a breakdown or emergent nature which arises during the course of the work which was the subject of the recall. (b) Overtime worked in the circumstances specified in clause 6.5.8 shall not be regarded as overtime for the purposes of clause 6.5.9 where the actual time worked is less than 2 hours on such recall or on each of such recalls. (c) Clause 6.5.8 shall not apply in cases where it is customary for an employee to return to the Employer's premises to perform a specific job outside of ordinary working hours, or where the overtime is continuous (subject to a reasonable meal break) with the completion or commencement of ordinary working time. -- 3 of 8 -- 4 6.5.9 Fatigue Break (a) An employee who works so much overtime between the termination of ordinary work on one day and the commencement of ordinary work on the next day that there is not at least 10 consecutive hours off duty between those times shall, subject to clause 6.5.9, be released after completion of such overtime until there is 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence. If on the instructions of the Employer such an employee resumes or continues work without having had such 10 consecutive hours off duty, the employee shall be paid double rates until released from duty for such period and the employee shall then be entitled to be absent until there is 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence. (b) Clause 6.5.9 shall apply in the case of shift workers who rotate from one shift to another as if 8 hours were substituted for 10 hours when overtime is worked: (i) for the purpose of changing shift rosters; (ii) where a shift worker does not report for duty; (iii) where a shift is worked by arrangement between the employees themselves." Agreed Statement of Facts [3] To facilitate the interpretation of the award, the parties prepared an agreed statement of facts which is set out below: 1. Nathan Parkes is a full time employee, of Southern Downs Regional Council, employed by Council in the calling of Assistant Wastewater Treatment Plant Operator. 2. On Sunday 17 July 2016, Mr Parkes received an automatic alarm notification as a result of a fault (chlorine tank alarm) arising at Council's sewage treatment plant, Stanthorpe. Mr Parkes was not on call and not in receipt of on call allowance. 3. Mr Parkes attended to work at 10:45am until 11:45 and returned home (1 hour). 4. Later that day a further fault developed, and Mr Parkes received another automatic alarm notification and attended to work to see to that fault. Mr Parkes subsequently attended to work at 3:40pm until 5:20pm (1.5 hours). 5. After returning home Mr Parkes received a further automatic alarm notification and attended to a subsequent fault. Mr Parkes subsequently attended to work at 6.10pm until 7:40pm (1.5 hours). -- 4 of 8 -- 5 6. Sunday 17 July 2016 was not an ordinary work day for Mr Parkes. 7. Council paid Mr Parkes for 4 hours at the rate of double time for all work performed on Sunday 17 July 2016. [4] The significant facts are that, in circumstances where he was neither "on call" nor in receipt of an "on call" allowance, Mr Parkes was required to perform work in overtime hours on Sunday 17 July 2016, on three separate occasions. The question to be answered in the determination of the dispute, is what payment is Mr Parkes entitled to for the performance of his work on 17 July 2016. The effect of the AWU position was that a payment for six hours at overtime rates (double time) was required to be made, while the Southern Downs Regional Council (the Council) asserted that the correct payment was four hours at overtime rates (double time). Council Submissions [5] The Council argued that the effect of the first sentence of Clause 6.5.3 of the Award was to set an overtime rate of double time, and to determine a daily minimum payment for any overtime worked on the day. [6] It was Council's submission that the language used in the first sentence of clause 6.5.3 "relates to overtime in a general sense, however worked, on a Sunday, as a whole day". Council submitted that the words "overtime worked on a Sunday" mean overtime worked on a Sunday as a whole day and that the minimum payment provided for was a minimum payment in relation to all or any overtime worked on a Sunday. [7] It was Council's view that the daily minimum payment operated independently of the number of separate work engagements on the day. Council submitted that there was "nothing contained in the first sentence, nor the entirety of clause 6.5.3, that makes any mention that the minimum payment is required per 'engagement' or per 'separate engagement'". [8] Council argued that the effect of the second sentence was that in the event that separate periods of overtime were worked, an entitlement to a minimum payment did not apply to these separate engagements. Council submitted that if the first sentence were read to provide for a daily minimum, then the second sentence would be construed in a consistent manner with the first sentence. [9] It appears to me that the Council approach relies on a reading of the second sentence as the starting point. When read in isolation, this sentence could be said to apply a blanket prohibition on the application of minimum payments to separate periods of overtime. It is in this context that Council concludes that the only way that the first sentence could be read consistently with the second sentence, is if the first sentence were to be construed to apply a daily minimum. [10] It followed that in circumstances where Mr Parkes worked a total of four hours on the day, he had exceeded the minimum period of work for which payment must be made, and his entitlement was to be determined by reference to the total actual hours worked (four hours). It was not a relevant consideration that he had worked three separate periods of overtime. Alternatively, if it were, the effect of the second sentence was to -- 5 of 8 -- 6 disallow any entitlement to a minimum payment if separate periods of overtime were worked. AWU Submissions [11] The AWU submitted that the starting point was to assign the words used in the first sentence of clause 6.5.3 their plain meaning. If this is done the first sentence can only be read to mean that if overtime is worked on a Sunday, then the worker required to perform that work is to receive a minimum payment for three hours. It is in this context that the second sentence determines what happens if any subsequent period of overtime is worked. For the second sentence to be read consistently with the first sentence, the second sentence must be read to limit the minimum payment to the first period of overtime worked on the day. [12] The effect of the AWU submission was that once it were accepted that the first sentence did not provide for a daily minimum, then the sentence was capable of meaning that, in the event of multiple work engagements, a minimum payment of three hours would apply to each and every engagement on the day. In these circumstances, the inclusion of the second sentence served the significant purpose of restricting the application of the three hour minimum to one period of overtime only. Case Law [13] A not dissimilar issue was resolved by the Industrial Court of Queensland when providing an interpretation of particular provisions under the Harbour Boards Award – State.1 In this matter the Court was asked to interpret a clause similar to the first part of clause 6.5.3 of the award, except that the clause in the Harbour Boards Award did not include the equivalent of the second sentence of clause 6.5.3. The provision subject to interpretation is set out below: "When boatment are called out to duty on Sundays and holidays they shall be allowed a minimum payment of four hours." [14] A separate clause in the award provided that all time worked on Sundays was to be paid for at double rates. In its judgement, the Court was concerned with a set of facts in which two boatmen had been called out to duty on a Sunday on two separate occasions. The first occasion was between 8.45 am and 11.55 am and the second occasion was between 3.45 pm and 7.10 pm. Time worked on the day totalled 6 hours and 35 minutes. [15] The union contended that employees were entitled to a four hour minimum for each call out or period of overtime. The employer opposed this position and advocated an outcome in which the specified minimum should be paid only once, and that the words "called out to duty" should be read to refer to either one period of work or multiple periods of work. In its judgement the Court stated inter alia: "The union contended that each call-out stood alone and that the employees were entitled to a 4 hour minimum for each call-out and were thus entitled to payment as for 8 hours at double rate, or 16 hours at ordinary time. 1 Harbour Boards Award—State (1953) 38 QIG 561 (30 September 1953) -- 6 of 8 -- 7 For the employer it was argued that there is nothing in the award to show that the minimum period for call-outs applies to each and every call-out. It was suggested that it was intended and was more sound in law to say that the minimum referred to the call-out or call-outs. Unfortunately, we do not know why this clause was inserted; we do not know what mischief it was intended to remedy. But the effect of the clause in different circumstances may afford some help in deciding its meaning. If the meaning contended for by the union be accepted, then, if an employee were called out on Sunday on three occasions of one hour each, he would be entitled to payment as for 12 hours at double rates, that is to say, for 24 hours at ordinary time. On the other hand, if the employer's argument be accepted, then the employee in the above circumstances would be entitled to payment for 8 hours at ordinary time. It is a reasonable assumption that the clause was intended to compensate an employee for the interruption to his domestic life on Sunday, and to his rest and recuperation. We think that the clause ensures that an employee shall receive at least the equivalent of a full day's pay for the first call-out. It cannot be argued successfully that an employer should be penalised in the manner suggested by the Union. We are of the opinion that if an employee is called out to work on Sunday he is entitled to a minimum payment of 8 hours at ordinary rates. Should he be called out more than once, then, in addition, he is entitled to be paid at double rates for all time worked in call-outs subsequent to the first call-out." [16] The effect of the Court's decision, as I understand it, was to reject the employer submission that the specified minimum payment was only to be paid once if more than one period of overtime were worked on the day. In short, the Court did not accept the equivalent of the "daily minimum" argument which was advanced by Council in these proceedings. Nevertheless, given that there are differences in the provisions being interpreted, I proceed on the basis that the Court's decision should be regarded as persuasive, rather than binding. Conclusion [17] In my view, clause 6.5.3 can be given its ordinary meaning. The first sentence means that if a worker is required to work on Sunday, he or she will get a minimum payment of three hours. It is this work event to which the minimum payment is attached. The sentence does not address whether this is the first and only attendance on the day, or whether subsequent attendances are envisaged. As such, the sentence leaves open, or is silent, on the question of whether the minimum payment is to be considered a "per day" payment, or whether, in the event of multiple work engagements on the day, the minimum payment is to be applied in respect to each separate period of overtime worked. In the event that subsequent periods of overtime are worked on the day, the first sentence does not prescribe what should apply. This is the work that the second sentence is put to. -- 7 of 8 -- 8 [18] I do not accept Council's reading of the first sentence. In my view something additional needs to be read into the first sentence before it can be construed to mean that the minimum payment is a daily payment. Further, if the first sentence were clearly prescribing a "per day" minimum, inclusion of the second sentence would be unnecessary. It would be irrelevant under a daily minimum concept how many separate periods of overtime were worked. [19] The second sentence, when read in isolation, does not need to be read in the manner proposed by Council. That is, its purpose need not be defined as imposing a blanket prohibition on the application of minimum payments to separate periods of overtime. It can, and in my opinion should, be read to mean that if periods of overtime are worked which are separate from the period of overtime prescribed in the first sentence, then each of those separate periods do not attract any minimum payment. It is this meaning which in my view best fits the purpose and intention of the clause, and provides for a consistent construction of both sentences. [20] While not determinative, it is relevant that Council's interpretation may give rise to an outcome which is either unintended, or inconsistent with the purpose of the clause. That is, under the Council interpretation, an employee required to attend work, for example, for thirty minutes on six separate occasions during the Sunday, would only receive three hours pay (albeit at double time). If any beneficial construction of the subclause is applied, this outcome would not be considered consistent with the intent and purpose of the clause as commented on by the Court in the Harbour Boards Award judgement. While Council correctly points out that the clause is also capable of a very generous application in that a worker required to work on twenty minutes on the Sunday derives an entitlement to three hours pay at double time, such an outcome is not an unintended consequence, but represents a fixed minimum level of remuneration considered appropriate to compensate an employee for the disruption to a period of rest, recreation and leisure. [21] Council also submitted that the interpretation of clause 6.5.3 could be assisted by a reading of clause 6.5.8(a), and that in a context where a reading of an industrial instrument as a whole may assist in the interpretation of individual clauses, the view articulated was that Council's interpretation secured consistency between the operation of clause 6.5.3 and clause 6.5.8. However, I accept the submission of the AWU that clause 6.5.8(a) does not assist in the interpretation of clause 6.5.3. [22] The interpretation of clause 6.5.3 is that Mr Parkes is entitled to payment for six hours at overtime rates (double time) in respect to the work he performed for Council on Sunday 17 July 2016. He is entitled to a minimum payment of three hours in respect to the first period of overtime, and is entitled to a further three hours pay in respect to the subsequent periods of overtime. -- 8 of 8 --