Department of Employment and Industrial Relations v Peace Lutheran Church Gatton Inc t/as Anuha Services [2008] QIRC 100 (2008) 189 QGIG 779

[Extract from Queensland Government Industrial Gazette, dated 21 November, 2008, Vol. 189, No. 15, pages 779-788] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 284 - interpretation of industrial instruments Department of Employment and Industrial Relations AND Peace Lutheran Church Gatton Inc t/as Anuha Services (B/2008/60) DEPUTY PRESIDENT SWAN 17 November 2008 DECISION Pursuant to s. 284 of the Industrial Relations Act 1999 (the Act), the Department of Employment and Industrial Relations (the Department) filed an application for interpretation of the Civil Construction, Operations and Maintenance General Award - State 2003 (the Award) for the purpose of interpreting clauses 6.1.1 and 6.4.2 of the Award. Because the Award is a common rule Award, those for which the Award has application were notified of this matter. The Australian Workers' Union of Employees, Queensland (AWU) sought and was granted leave to appear. The 2 questions posed are as follows: "(a) Does subclause 6.1.1 of the award for Day Workers apply to the employee. (b) Do overtime rates as per clause 6.4.2 of the award apply to the work the employee performed on Saturdays and Sundays, as this work was outside the conditions set in clause 6.1.1 and in particular, outside the ordinary hours of work prescribed at subclause 6.1.1(b).". [Application for Interpretation, 22 July 2008.] The history of the matter is contained within the Statement of Agreed Facts: "In relation to the above-mentioned matter, both Julie Anne Whelan, Industrial Inspector, of the Department of Employment and Industrial Relations for Maurice Hennessy, and Robert Evelyn of Peace Lutheran Church Gatton Incorporated agree that the following facts are not disputed by either party: 1. Maurice Arthur Hennessy was employed by Peace Lutheran Church Gatton Incorporated trading as Anuha Services. Anuha Services is a Disability Support Service which provides employment and lifestyle support to people with a disability. The service operates 24 hours a day, seven days a week. 2. Anuha Services has a contract with the Gatton Shire Council (now Lockyer Valley Regional Council) for the supervision of its transfer stations and the collection of kerbside recycling conducted as part of its supported employment program for people with a disability. Mr Hennessy was not a client of the service, his work complemented the services programs by provision of additional income to support the organisations programs. 3. His period of employment was from 6/1/2003 to 12/12/2007. 4. He was employed as a transfer station operator at the Helidon Transfer Station. This site is open from 9.00am to 5.00pm. No work was performed outside of these hours. 5. Mr Hennessy was a part-time employee and worked a minimum of three (3) days a week usually from Friday to Sunday. 6. Mr Hennessy worked eight (8) hours per day from 9.00am to 5.00pm. He worked alone at the site every work day but received supervision by the recycling supervisor on a regular basis. He did not have any worker replace him at the end of his work day and no work was performed by anyone before 9.00am at his site. 7. His duties were to supervise the activities of the recycling transfer station including directing and supervising customers in the recycling and dumping of waste and ensuring all activities on site were in accordance with contract requirements. 8. While performing the duties of this job, Mr Hennessy was required to work outside. When Mr Hennessy was not attending to his outside duties he worked in a site office. 9. For the period of 6/1/2003 to 27/4/2003 the work undertaken by Mr Hennessy was covered by the conditions of the Civil Construction, Operations and Maintenance General Award - State. -- 1 of 9 -- 2 10. For the period 28/4/2003 to 26/3/2006 the work undertaken by Mr Hennessy was covered by the conditions of the Civil Construction, Operations and Maintenance General Award - State 2003. 11. For the period 27/3/2006 to 12/12/2007 the work undertaken by Mr Hennessy was covered by the conditions of the Civil Construction, Operations and Maintenance General Award - State (Napsa - Qld).". Relevant legislation Section 284 of the Act states: "(1) The commission may give an interpretation of an industrial instrument, other than a certified agreement or QWA, on application by - (a) the Minister, or (b) an organisation; or (c) an employer; or (d) a person who satisfies the commission that the person is not an officer of, or acting for, an eligible association; or (e) an inspector. (2) The Commission may give an interpretation of a certified agreement on application by - (a) the Minister; or (b) an organisation, or other person, bound by the agreement; or (c) an employee whose employment is subject to the agreement; or (d) an inspector. (3) The Commission may give an interpretation of a QWA on application by - (a) a party to it; or (b) an inspector. (4) If an inspector's application under this section relates to an alleged ambiguity, the commission must hear and decide the application in the absence of a statement of agreed facts.". The Award Clause 1.3.12 of the Award states: "Employees of contractors and sub-contractors to Joint Boards and Local Authorities within the meaning of the Local Government Act 1993 who carry out works other than construction and/or maintenance of roads which is normally carried out by employees of Joint Boards or Local Authorities under the provisions of the Local Government Employees' (Excluding Brisbane City Council) Award - State.". Clause 6.1.1 of the Award states: "6.1 Hours of work and shift work 6.1.1 Day workers (a) Subject to clause 6.2, and subject to the exceptions hereinafter provided, the ordinary hours of work shall be an average of 38 per week, to be worked on one of the following bases: (i) 38 hours within a work cycle not exceeding 7 consecutive days; or (ii) 76 hours within a work cycle not exceeding 14 consecutive days; or (iii) 114 hours within a work cycle not exceeding 21 consecutive days; or -- 2 of 9 -- 3 (iv) 152 hours within a work cycle not exceeding 28 consecutive days. (b) The ordinary hours of work prescribed shall be worked Monday to Friday inclusive. (c) The ordinary hours of work prescribed herein shall be worked continuously, except for meal breaks between 6.00 a.m. and 6.00 p.m. The spread of hours prescribed herein may be altered as to all or a section of employees provided there is agreement between the employer and the majority of employees concerned: Provided further that work done outside the hours of 6.00 a.m. to 6.00 p.m. in these circumstances shall be paid at overtime rates and will be deemed to be part of the ordinary hours of work for the purposes of this clause 6.1. (d) The ordinary starting and finishing times of various groups of employees or individual employees, may be staggered, provided that there is agreement between the employer and the majority of employees concerned. (e) The ordinary hours of work prescribed herein shall not exceed 10 hours on any day: Provided that where the ordinary working hours are to exceed 8 on any day, the arrangement of hours shall be subject to the agreement of the employer and the majority of employees concerned: Provided further that by arrangement between an employer, the Union concerned and the majority of employees in the work section or sections concerned, ordinary hours not exceeding 12 on any day may be worked subject to: (i) the employer and the employees concerned being guided by the occupational health and safety provisions of the ACTU Code of Conduct on 12 hour shifts; (ii) proper health monitoring procedures being introduced; (iii) suitable roster arrangements being made; and (iv) proper supervision being provided. (f) Employees are required to observe the nominated starting and finishing times for the work day, including designated breaks to maximise available working time. Preparation for work and cleaning up of the employee's person shall be in the employee's time. (g) The span of ordinary hours set out in clause 6.1.1(c) shall not apply to street sweepers and/or cleaners including operators of street sweeping and flushing machines, mechanical brooms etc. The starting and finishing times of these employees shall be determined by the employer based on the requirements of the work. When these employees are required to work ordinary hours before 6.00 a.m. or after 6.00 p.m. they shall be paid a loading of 25 percent on their ordinary time rate for all such time worked prior to 6.00 a.m. or after 6.00 p.m. (h) When an employer considers it necessary on account of tidal or flood waters, or to cater for the needs of industry, including safety vehicular traffic, concrete pours, asphalt laying and/or geographical factors such as seasonal climatic extremes, etc. to work employees in the civil construction Etc. or Crown streams outside the span of ordinary working hours, such work may be done outside the span of ordinary working hours without payment of overtime provided the ordinary number of working hours determined in any one day is not exceeded and work is performed only during daylight hours. (i) Cooks - Department of Main Roads - The ordinary hours of Cooks shall be between 5.00 a.m. to 8.00 p.m.". Clause 6.1.2 of the Award states: "6.1.2 Hours for shift workers -- 3 of 9 -- 4 (a) The ordinary working hours of continuous shift workers and shift workers whose work is connected with or incidental to any continuous process shall average 38 hours per week inclusive of crib time and shall not exceed 152 hours in 28 consecutive days: Provided that, where the employer and the majority of employees concerned agree, a roster system may operate on the basis that the weekly average of 38 hours is achieved over a period which exceeds 28 consecutive days. Subject to the following conditions, such shift workers shall work at such times as the employer may require. For the purposes of clause 6.1.2: (i) "Day shift" shall commence at or after 6.00 a.m. and before 12 noon; (ii) "Afternoon shift" shall commence at or after 12 noon and before 6.00 p.m.; (iii) "Night shift" shall commence at or after 6.00 p.m. and before 6.00 a.m. (iv) "Continuous shift work" means work that is continuous for 24 hours per day for an unbroken period of one lunar month, or 28 days, except in the case of floods or breakdowns or shutting down for holidays: Provided that by mutual consent provision may be made for the rotation of shifts. (b) A shift shall consist of not more than 10 hours inclusive of crib time: Provided that: (i) in any arrangement of ordinary working hours where the ordinary working hours are to exceed 8 on any shift the arrangement of hours shall be subject to agreement between the employer and the majority of employees in the work section or sections concerned; and (ii) by agreement between an employer, the Union concerned and the majority of employees in the plant, work section or sections concerned, ordinary hours not exceeding 12 on any day may be worked subject to: (A) the employer and the employees concerned being guided by the occupational health and safety provisions of the ACTU Code of Conduct on 12 hour shifts; (B) proper health and monitoring procedures being introduced; (C) suitable roster arrangements being made; and (D) proper supervision being provided. (iii) except at the regular changeover of shifts an employee shall not be required to work more than one shift in each 24 hours.". Clause 6.4.2 of the Award states: "6.4 Overtime ... 6.4.2 Except as hereinafter provided all authorised work performed outside the normal starting and ceasing times as prescribed by roster established pursuant to clause 6.1, on any one day, shall be deemed to be overtime and shall be paid for at the rate of time and a-half for the first 3 hours and double time thereafter: Provided that all authorised overtime performed on a Saturday or its equivalent shall be paid for at the rate of time and a-half for the first 3 hours and double time thereafter with a minimum of 3 hours' payment at overtime rates: Provided further that all authorised overtime performed on a Sunday or its equivalent shall be paid for at the rate of double time with a minimum of 3 hours' pay at overtime rates.". Overview of the Department's claim -- 4 of 9 -- 5 The original complaint was made by a former employee of Peace Lutheran Church Gatton Incorporated trading as Anuha Services (the employer), Mr Maurice Arthur Hennessy (the employee). The employee was represented by the Department. The employer has a contract with the Lockyer Valley Regional Council (formerly the Gatton Shire Council) (the Council) for the supervision of its transfer stations and the collection of kerbside recycling. The employee was engaged to work as a transfer station operator at the Heildon Transfer Station on at least 3 days per week. These days were usually Friday, Saturday and Sunday. The employee worked on his own each day from 9.00 a.m. to 5.00 p.m. The employee was not a client of the employer, although he was sometimes employed as a Disability Support Worker on days when he was not working at the transfer station. The Department stated that the employee was a "day worker" (clause 6.1.1 of the Award) and as such was entitled to the overtime rates pursuant to clause 6.4.2 of the Award for time worked on Saturdays and Sundays. The time being worked on these days was time worked outside of the ordinary hours prescribed for day workers in clause 6.1.1(b) of the Award. The Department asserted that of the 3 categories of employees covered by the Award (i.e. day workers, shift workers, other than continuous shift workers), the applicable category for this employee was that of "day worker". Clause 6.1.2 of the Award ("shift workers") could not apply to this employee because it refers to "continuous shift workers" and "shift workers whose work is connected with or incidental to any continuous process". Continuous shift work is defined as "work that is continuous for 24 hours per day for an unbroken period of one lunar month, or 28 days, except in the case of floods or breakdowns or shutting down for holidays.". [Clause 6.1.2(a)(iv) of the Award.] This provision clearly does not relate to this employee. The Department pointed out that clause 6.4.2 of the Award provides that for all authorised overtime worked on a Saturday and/or a Sunday, the penalty rates of time and a-half for the first 3 hours on Saturday and double time on Sunday apply. There is little question that the overtime was "authorised". The Department stated that the Award did not have a provision for part-time employment, other than what was prescribed in clause 4.2 of the Award which reads as follows: "Part-time work can be performed by agreement in the circumstances specified in the Family Leave Award and the Family Leave Award - Queensland Public Sector.". This clause was not applicable to the employee. The only other categories are full-time and casual employment. The employee was not a casual employee. The employee was paid annual leave and sick leave. There was no series of engagements which might indicate casual employment. Rather, the employee's contract of employment stated that he was to be employed at the transfer station on at least 3 days per week, Friday to Sunday in addition to any other employment as required. The Department submits: "Notwithstanding the use of the word 'part-time' by the employer, the employee was by default a full time employee on day work and entitled to the provision of work for the ordinary hours as set out in sub clause 6.1.1. The fact that the employer did not provide a full 38 hours of work per week (apart from when the employee relieved other staff between Mondays and Thursdays), or did not count the hours worked under a different award, does not alter this entitlement.". [Department's submissions, p. 5.] Further, the Department added: "Weekend penalty rates provide for time and a half from midnight Friday to midnight Sunday whereas overtime rates provide for time and a half for the first 3 hours on Saturday and double time thereafter and all double time on Sunday. If the Department's interpretation of the relevant clauses of the award is correct, the employee has been underpaid throughout the period of his employment.". [Department's Submissions, p. 1.] The employer's position The employer's submission was that the Award did not apply to its workers. In fact, it was put that this employee was award-free. The contradiction between this submission and the Statement of Agreed Facts is dealt with in the conclusion to this decision. -- 5 of 9 -- 6 The employer's decision to pay the employee the rates which it did on a Saturday and Sunday came from the use of a "standard that we were using in some of the other awards that we used for our support workers within our organisation". [Transcript, Day 2, p. 2-12.] The employer referred to clause 1.3.12 of the Award. That clause is as follows: "Employees of contractors and sub-contractors to Joint Boards and Local Authorities within the meaning of the Local Government Act 1993 who carry out works other than construction and/or maintenance of roads which is normally carried out by employees of Joint Boards or Local Authorities under the provisions of the Local Government Employees' (Excluding Brisbane City Council) Award - State.". The employer says that the use of the word "works" precludes its work from being caught by the Award. The employer said it did not conduct any "works" for local authorities. The work performed by the employee was supervising vehicles when they came to the transfer station and directing people to either recycle their waste or to place it into a receptacle. A different contractor then moved the receptacle away. This type of work was more akin to "road works" which was excluded from the Award. There are 3 categories of workers envisaged within this Award. Those categories are "day workers", "continuous shift workers" and "other than continuous shift workers". The employer contends that none of those categories fit the employee in question. The employer said that overtime is not payable unless an employee works beyond 38 hours per week. The employee does not fit into that category. The employee worked part-time and that category is not permitted within the Award. Also, while acknowledging that there is "no continuous shift work that's done" [Transcript, Day 2, p. 2-15], the employer stated that "our intent is that the work done is in fact classed as a shift of an eight hour duration ... We do have a continuous shift process, not necessarily directly related to the employment, but the organisation certainly does operate on that basis.". [Transcript, Day 2, p. 2-15.] The employer said that he employed the employee for 24 hours per week and at no time did the employee ask to work a full 38 hour week. The employer maintained that the employee was engaged on a part-time basis but not according to clause 4.2 of the Award. The Award did not contemplate part-time work of the nature performed by the employee and consequently, the employee was award-free. The contract between the employer and the Council did not allow for the working of a 38 hour week by the employee. The employer said that there was no question of further working hours being offered to the employee because he was only ever offered 24 hours per week according to the contract. The AWU's position The AWU supported the Department's claim. Reference was made to the objects of the Act, and specifically section 3(j): "3 Principal object of this Act The principal object of this Act is to provide a framework for industrial relations that supports economic prosperity and social justice by - ... (j) promoting and facilitating the regulation of employment by awards and agreements; and ...". Clause 2 of the Agreed Statement of Facts shows that the employer has a contract with the Council "for the supervision of its transfer stations and the collection of kerbside recycling". The AWU states that this is work usually performed by a local authority and in this instance, it is work being performed by a contractor for the relevant local authority. In this case, clause 1.3.12 of the Award is applicable. Clause 7 of the Statement of Agreed Facts says: "His duties were to supervise the activities of the recycling transfer station including directing and supervising customers in the recycling and dumping of waste and ensuring all activities on site were in accordance with contract requirements.". Within the Award, a specific reference is made to a "refuse tip supervisor". This was the type of work being performed by the employee and therefore, the Award applies. -- 6 of 9 -- 7 The AWU viewed the stance taken by the employer as one where an employer had structured its working arrangements in an attempt to have its employees sit outside of the applicable Award. The AWU does not quarrel with the employer's right to have its employees work prescribed hours but what the AWU does say is that those employees must be paid correctly. In this employee's case, he could only fit into 3 possible categories: i.e. "day worker" (clause 6.1.1 of the Award), "continuous shift worker" (clause 6.1.2 of the Award) and/or "other than continuous shift worker" (clause 6.1.3 of the Award). Against that background, the only logical conclusion to be drawn is that clause 6.1.1 of the Award applies. This clause relates to "day workers". The employee was only offered 3 days work per week but was available to work for the employer in a different capacity as and when required. This extra work, as a matter of fact, was performed as required by the employer. The Department's submissions Clause 6.1.3 of the Award prescribes the hours for "other than continuous shift workers". While there is no definition of shift worker, clause 6.1.3(e) of the Award makes reference to the "regular changeover of shifts" and employees not being required to "work more than one shift in each 24 hours". This provision does not relate to the employee in question. Consequently, as "subclause 6.1.2 applies to shift workers involved in a continuous roster or process over 24 hours, and subclause 6.1.3 applies to shift workers where there is more than one shift per day but the roster is not continuous over 24 hours" [Department's submissions, p. 2] the Department says that the employee can only be a day worker pursuant to clause 6.1.1 of the Award. Clause 6.4.2 of the Award provides that all authorised overtime worked on Saturday and/or Sunday should be paid at time and a-half for the first 3 hours on Saturday and double time thereafter and double time on a Sunday. When an employee is a day worker, time worked on a Saturday or Sunday is not worked at ordinary time (clause 6.1.1(b) of the Award). The time worked on a Saturday and/or Sunday must be overtime. There was no question that the work was authorised. In considering the employer's submission that the employee was not a day worker (and consequently not covered by the Award), the Department believed that this would create an "unfair, unjust, or absurd situation in that none of the provisions of clause 6.1 covering hours of work applied to the employee and he would have had no entitlement to overtime (apart from that prescribed in the Act) irrespective of what time of the day or night he worked, or which days he worked.". [Department's submissions, p. 4.] The Department submits that even though the employer has used the words "part-time employee", the employee was by default a full-time employee on day work and entitled to the provision of work for the ordinary hours as per clause 6.1.1 of the Award. The fact that the employer did not offer the employee 38 hours of work per week does not alter the employee's entitlement. In T.J. Metcalfe v B.P. Dance, Executor of the Will of A.A.A. Dance, Deceased (42 QGIG 708), the President and one other Member of the Industrial Court of Queensland held that an employee was entitled to the minimum weekly wage (plus overtime) in this situation only if the employee was available to work the ordinary working hours. The dissenting Member of the Court held that: "It seems to me that in this case the employer arranged hours of work other than those provided in the Award and that he forfeited voluntarily a privilege granted him by the Award, viz. requiring the employee to work ordinary hours. However by this voluntary action he should not in my opinion be entitled to deprive the employee of his weekly rate of pay.". [See also re Sugar Industry Award - State - Payment of Overtime to Shift Workers, who worked Overtime on Saturday, but Lost time during the Week on Account of Wet Weather. Case stated for the opinion of the Court. (23 QGIG 692); re Sugar Industry Award - State - Overtime (23 QGIG 827); and re Sugar Industry Award - State - Interpretation (50 QGIG 9).] The Department related the history of the Award from 1920 when the Local Authorities Award - State (Local Authorities Award) was introduced as a consolidated award to replace a number of local authority awards. In 1990, Crown and local authority employees were provided with the 38 hour week average cycles. The current Local Authorities Award was made on April 2003. In that Award, a new definition of "refuse tip supervisor" was made and this was included under the wage classification of "Construction, Maintenance and General Workers Grade IV". The Department states that the definition of "refuse tip supervisor" covered exactly the type of duties and nature of work being performed by the employee in this matter. -- 7 of 9 -- 8 During 1992, a new subclause was inserted into clause 1.2 of the Award covering employees of contractors and subcontractors to local authorities who were carrying out works other than construction and/or maintenance of roads which is normally carried out by employees of local authorities. The hours clause at 4.1 of the 1992 Award provided for day workers, continuous shift workers and other than continuous shift workers and this did not change in the updated 1999 Award and the current 2003 Award. From that history of the Award, "examination of the precedent awards offers little assistance other than to confirm that there was no suggestion or intention to alter the generally accepted concept of day workers and shift workers, nor does there appear to be any intention to allow employees (other than shift workers) to work on a Saturday or Sunday without the payment of prescribed overtime rates.". [Department's submissions, p. 8.] There has been no part-time provisions in either the Local Authorities Award or the Award. Employees under both Awards were either full-time or casual. Conclusion Despite the Statement of Agreed Facts stating that the employee was, at all relevant times, employed pursuant to the Award, the employer has submitted that the employee was award-free. Notwithstanding that, I have duly considered the employer's submissions given at this hearing. I have accepted that the Award applied to the employee. The nature and type of work being undertaken by the employee falls under the Award. The agreed Statement of Facts at point 7 says that the employee's duties were to "supervise the activities of the recycling transfer station including directing and supervising customers in the recycling and dumping of waste and ensuring all activities on site were in accordance with contract requirements.". Point 6 of the Agreed Statement of Facts says that the employee "worked alone at the site every work day but received supervision by the recycling supervisor on a regular basis.". While these statements appear slightly contradictory, there is no confusion around the type of work performed. Work of this nature is covered by this Award. I have accepted the submissions which show that the employee could not be classified as a "shift worker" or "other than continuous shift worker". Whilst the employee worked less than full-time hours, he was not a part-time employee within the meaning of the Award. He was not and could not be a part-time employee and he was also not a casual employee. The question is more whether the hours worked qualify the employee to be considered as a day worker. It does not matter that the employer only wanted to or only could employ the employee for 24 hours per week. That reasoning does not provide an excuse for not adhering to the Award provisions. Were that reasoning to be correct, it would permit any employer to alter an employee's working hours to ensure that the employee may be deemed to be award-free. The employee could only work 24 hours per week because that was all that was offered to him. The employee was available to work at other times when requested by the employer in a different capacity and did so. The employee's availability to work extra hours was apparent. The employer's submission that clause 1.3.12 of the Award placed the type of work being performed by the employee outside the ambit of the Award, holds no merit. The type of work performed by the employee was not akin to "road works". The work being performed by the employee fell squarely under the type of work covered by the Award. In response to the questions posed in the application: Question (a): "Does subclause 6.1.1 of the award for Day Workers apply to the employee?". Answer: Yes. Question (b): "Do overtime rates as per clause 6.4.2 of the award apply to work the employee performed on Saturdays and Sundays, as this work was outside the conditions set in clause 6.1.1 and in particular, outside the ordinary hours of work prescribed at subclause 6.1.1(b)?". Answer: Yes. Order accordingly. -- 8 of 9 -- 9 D.A. SWAN, Deputy President. Hearing Details: 2008 20 August 1 October Released: 17 November 2008 Appearances: Mr E.J. Carfrae, of the Department of Employment and Industrial Relations, the applicant. Mr R. Evelyn, of Peace Lutheran Church Gatton Inc t/as Anuha Services, the respondent. Mr D. Broanda, of The Australian Workers' Union of Employees, Queensland. Government Printer, Queensland The State of Queensland 2008. -- 9 of 9 --