Bryson v St Brendan's College [2007] QIRC 93 (2007) 186 QGIG 716
Extract from Queensland Government Industrial Gazette,
Dated 21 December 2007, Vol. 186, No. 20, pages 716-730]
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 - s. 278 - unpaid wages
Renate Bryson AND St Brendan's College (B/2007/29)
COMMISSIONER ASBURY 12 December 2007
DECISION
1. Overview
This is an application by Renate Bryson under s. 278 of the Industrial Relations Act 1999 (the Act). Ms Bryson claims
unpaid wages in the amount of $13,952.71, for the period 19 February 2001 and 20 May 2006, as follows:
2001 - $1,705.58
2002 - $1,511.03
2003 - $4,480.59
2004 - $2,780.75
2005 - $3,431.20
2006 - $ 43.56
The respondent in this matter is St Brendan's College, Yeppoon (the College). The College concedes that Ms Bryson
was underpaid during the period subject of her claim, by an amount of $8,595.86. The difference between the amount
claimed and the amount the College concedes is owed, is based on a dispute between the parties about the application
and interpretation of certain provisions of the Award and the Agreement.
2. Evidence and Submissions for the Applicant
Ms Bryson was employed by the College in 2001 and 2002 as a casual in the kitchen, as well as a cleaner in the
boarding dormitories. In 2003, Ms Bryson's employment (along with that of other casual employees) was converted to
part-time employment. On 20 January 2003, a letter confirming this change was sent to Ms Bryson under the signature
of Mr Mark Cranny, the College's Business Manager (Exhibit 11 Attachment 1). That letter, countersigned by
Ms Bryson on 5 February 2003, attaches a roster as follows:
" KITCHEN CLEANING
SUNDAY 6.30 a.m. to 1.30 p.m.
MONDAY 5.45 p.m. to 9.15 p.m. 5.00 a.m. to 8.00 a.m.
TUESDAY 5.00 a.m. to 8.00 a.m.
WEDNESDAY 5.45 p.m. to 9.15 p.m.
THURSDAY 5.00 a.m. to 8.00 a.m.
FRIDAY 5.00 a.m. to 11.30 a.m.
SATURDAY".
Essentially that roster provided for Ms Bryson to work 15.5 hours per week cleaning and 14 hours per week in the
kitchen. This work was performed over six days of the week. There was evidence that Ms Bryson's roster was changed
from time to time, for reasons such as Ms Bryson working additional hours to cover for an employee absent due to
illness, and because of variations in the numbers of boarders.
During the period subject of Ms Bryson's claim, her employment was regulated by two industrial instruments. From
19 February 2001 until 20 April 2005, the industrial instrument regulating the terms and conditions of Ms Bryson's
employment was the Catholic Boarding Schools and Colleges Employees (Excluding South-East Queensland) -
Industrial Agreement (the Agreement). On 20 April 2005, the Agreement was repealed, and a new award, entitled
Catholic Boarding Schools and Colleges Employees (Excluding South-East Queensland) Award - State 2005 (the
Award) came into effect.
Ms Bryson contended that her entitlement to unpaid wages claimed stems from breaches by the College of various
provisions of the Agreement and the Award in relation to the following matters:
a requirement for employees to have two consecutive days off;
payments when recalled to work overtime after leaving the employer's premises;
a change to the basis of Ms Bryson's employment from part-time to casual, without her knowledge or agreement;
failure to pay six hours of sick leave for 19 May 2006; and
failure to pay weekend penalty rates.
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Ms Bryson also contended that she was not paid correctly for overtime worked, including meal breaks. Ms Bryson
tendered her personal diaries for the period covered by her claim. A perusal of these diaries indicates that Ms Bryson
recorded every aspect of her daily activities in minute detail, including hours worked. Ms Bryson also tendered her
payslips for the period in question and a summary sheet showing hours she claimed to have worked, the amount paid for
those hours and the amount said to be owing. The summary document, comprising some 130 pages was Appendix E to
Ms Bryson's Affidavit (Exhibit 1). Ms Bryson's oral evidence was that in numerous weeks she was required to work for
7 days straight without a break. Ms Bryson also contended that she was underpaid on other days and was denied sick
leave to which she was entitled on 19 June 2006.
Ms Bryson said that in 2003, she was directed by Frank Hildenbeutel to falsify time sheets as management did not want
to see overtime on time sheets. According to Ms Bryson's evidence, this could be demonstrated by reference to her
diary which showed hours actually worked. The relevant days were 4, 5, 11, 12, 18, 19, 25 and 26 August; 1, 2, 8, 9, 15
and 16 September; and 6 and 7 October 2003. On 15 August 2003 the following entry appears in Ms Bryson's diary:
"Had to change my cleaning time sheet due to double time and a half, but Frank said to add a couple of hours so
I don't lose out altogether. Worked out Mon and Wed 4 hrs each, Tues, Thurs and Friday 7 hrs each = 58 hrs for
fortnight. Head office didn't want anyone to put over time on their time sheets.".
On 3 October 2003 a further entry appears as follows:
"Was told not to falsify time sheets anymore on 10/10/03. This last pay for doing so.".
According to Ms Bryson's diaries, the actual hours worked by her on those dates were as follows:
4 August 2003 - 3.5 hours kitchen and 9 hours cleaning;
5 August 2003 - 9 hours cleaning;
11 August 2003 - 3.5 hours kitchen and 9 hours cleaning;
12 August 2003 - 9 hours cleaning;
18 August 2003 - 3.5 hours kitchen and 9 hours cleaning;
19 August 2003 - 9 hours cleaning;
25 August 2003 - 3.5 hours kitchen and 9 hours cleaning;
26 August 2003 - 9 hours cleaning;
1 September 2003 - 3.5 hours kitchen and 9 hours cleaning;
2 September 2003 - 9 hours cleaning;
8 September 2003 - 3.5 hours kitchen and 9 hours cleaning;
9 September 2003 - 9 hours cleaning;
15 September 2003 - 3.5 hours kitchen and 9 hours cleaning;
16 September 2003 - 9 hours cleaning;
6 October 2003 - 3.5 hours kitchen and 6 hours cleaning; and
7 October 2003 - 9 hours cleaning.
Ms Bryson's diaries generally do not indicate the starting and finishing times for the periods of time worked either in the
kitchen or cleaning, and it is not clear from the evidence whether Ms Bryson returned home between kitchen duties and
cleaning duties on days when both were performed. Generally the diaries simply state the number of hours said to have
been worked in the kitchen, the infirmary or cleaning. Ms Bryson conceded that in some instances, with the approval of
Mr Hildenbeutel, she recorded additional hours at ordinary rates, in respect of days when she did not work, so that she
received compensation for these overtime hours. However, the evidence about how often this occurred was not clear
and the matter was not clarified in cross-examination.
Ms Bryson also said that in 2005, for six months from 13 May to 14 October, her rate of pay for cleaning duties was
changed from permanent part-time to casual, except for the week of 24 June 2005 when the part-time rate was paid.
The rate paid to Ms Bryson for work in the kitchen did not change during this period. This change was made without
Ms Bryson's knowledge or consent. Ms Bryson was then prompted to scrutinise all of her pay slips and compare them
with the hours she had recorded in her diary. Ms Bryson's evidence about this period is unclear, but it appears that she
contends that the College has not credited her with sick leave or annual leave for six fortnights during this period.
Further, the College has contended that Ms Bryson was overpaid for this period, by virtue of being paid a casual
loading. Ms Bryson said in her evidence that she had not included this matter in the present claim for unpaid wages.
Ms Bryson said that her claim is based on the following clauses of the Agreement:
3.3(6) penalty payments for work performed on Saturday or Sunday for other than part-time or casual
employees;
3.3(7)(a) payment of casual employees at the rate of 1/38 of the appropriate weekly rate with a two hour
minimum payment;
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4.6.2 overtime meal breaks;
4.6.3 payment at overtime rates for all time worked on rostered days off;
4.6.6 minimum payment for employees recalled to work overtime;
4.9(1) minimum hours of work and rosters for part-time employees;
4.9(2) hours of work for part-time employees;
4.9(4) annual leave for part-time employees;
4.9(5) overtime for part-time employees;
5.1(1) annual leave;
5.2(1) payment for work on statutory holidays; and
5.3(3) sick leave.
In relation to the Award, Ms Bryson's claim was said to be based on the following clauses:
4.3(1) hours of work for part-time employees;
4.4.2(a) payment of casual employees at the rate of 1/38 of the appropriate weekly rate with a two hour
minimum payment;
6.5.1 overtime payments;
6.5(2) overtime meal breaks;
6.5(3) overtime for work performed on an employee's rostered day off;
6.5(6) minimum payment for employees recalled to work overtime;
6.6.2 weekend penalty payments for other than part-time or casual employees.
7.1.2 annual leave to be exclusive of public holidays;
7.2.3 evidence supporting a claim for sick leave;
7.6.1 payment for public holidays worked; and
7.6.4 payment for public holidays for employees who do not work Monday to Friday of each week.
On perusing Ms Bryson's calculations, it is apparent that the following methodology has been adopted to formulate the
amount claimed:
it has been assumed that the maximum number of ordinary hours which could be worked by Ms Bryson in any
day was 7.6;
for ease of calculation the maximum number of ordinary hours which can be worked in any one day has been set
at 7.5 rather than 7.6 because Ms Bryson did not think that six minutes mattered;
it has been assumed that where Ms Bryson did not have two consecutive days off, she is entitled to be paid at
overtime rates for work performed on the sixth and seventh day in any week;
Ms Bryson has claimed an entitlement to a laundry allowance of $5.00 per week;
it has been assumed that provisions requiring an eight hour break between work on successive days applied to
Ms Bryson; and
it has been assumed that penalty provisions for employees recalled to work overtime after leaving the employer's
premises on any day applied to Ms Bryson.
3. Evidence and Submissions for the Respondent
Mr O'Neill performed wages calculations for the Respondent to ascertain the extent of any underpayment to Ms Bryson.
According to Mr O'Neill's evidence the calculations were undertaken with reference to Ms Bryson's time sheets, and the
terms of the Agreement and the Award. It was conceded that there had been an underpayment of wages to Ms Bryson
in relation to the following provisions of the Agreement and the Award which were not applied or had been incorrectly
applied by the College:
failure to pay overtime rates when the spread of hours worked by Ms Bryson exceeded fourteen hours;
failure to pay overtime rates when there was less than an eight hour break between Ms Bryson ceasing duty on
one day and commencing on the next day;
failure to pay a minimum engagement period when the engagement was for one hour;
failure to pay overtime for hours worked in excess of 7.6 in any one day as a casual employee;
failure to pay overtime for hours worked in excess of 7.6 in any one day, or outside rostered hours as a part-time
employee;
incorrect interpretation of the payment for public holidays;
failure to pay a four hour minimum when Ms Bryson worked for less than four hours on a public holiday;
more than five hours of continuous work with no meal break; and
payment at a casual rather than a part-time rate of pay.
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According to the evidence of Mr O'Neill, the amount owed to Ms Bryson is $8,595.86 comprising the following
amounts for the period subject of the present application:
2001 - Underpaid $ 348.97
2002 - Underpaid $2,657.90
2003 - Underpaid $3,136.14
2004 - Underpaid $3,206.74
2005 - Overpaid $ 759.52
2006 - Underpaid $ 5.63
The methodology adopted by Mr O'Neill to calculate the amount said to be owed to Ms Bryson by the College was
as follows:
payment of overtime (time and a-half for the first three hours and double time thereafter) for any hours in excess
of the spread of fourteen hours;
payment of double time where Ms Bryson had less than an eight hour break between ceasing duty on one day
and commencing duty on the next, with such payment continuing until Ms Bryson received an eight hour break;
payment of a two hour minimum engagement in circumstances where Ms Bryson had worked less than two
hours;
payment of hours worked in excess of 7.6 on any day at overtime rates (time and a-half for the first three hours
and double time thereafter);
where Ms Bryson was a part-time employee, payment was calculated for public holidays not worked, on the
basis of hours that would have been worked if not for the public holiday;
where Ms Bryson worked on a public holiday a four hour minimum payment at the rate of double time and a-
half was calculated;
where Ms Bryson worked more than five hours continuously without a meal break, hours in excess of five were
calculated at the rate of double time.
In his oral evidence, Mr O'Neill said that it had been assumed that hours worked by Ms Bryson within a 14 hour spread
each day were ordinary hours, except where those hours exceeded 7.6. This approach had been taken as a result of
views expressed during conciliation proceedings by another member of the Commission, in relation to disputes between
Ms Bryson and the College. Mr O'Neill also said that it had been assumed that Ms Bryson was not entitled to two
consecutive days off per week under the Award or the Agreement, either as a casual or a part-time employee.
Mr Cranny said that it was his responsibility as Business Manager to sign off on all time sheets. The method used to
process time sheets at the College was for the employee to complete the time sheet and have it signed and verified by
his or her supervisor. The supervisor would then forward the time sheet to the payroll officer who would collate hours
worked by the employee on a summary sheet. Mr Cranny would then sign off on the summary sheet and forward it to
the payroll office at the Province Centre in Brisbane. At all times there was an expectation that staff would work in
accordance with their rosters.
On 27 May 2004 a memorandum had been provided to Ms Bryson indicating the need to conserve hours of work due to
budgetary constraints arising from enrolments not being as buoyant as had been hoped (refer Exhibit 1 Appendix F). At
that point the College was under financial difficulty due to declining enrolments. The College was looking at all areas
of its operation to reduce costs. It had been emphasised to supervisors that rosters needed to be strictly adhered to and
that no additional hours should be worked unless there was a specific need.
Prior to the present claim, there were at least two occasions where disputes between Ms Bryson and the College
occurred, and on each of these occasions Ms Bryson sought the assistance of the Queensland Industrial Relations
Commission. These disputes related to allegations of workplace bullying; additional hours worked by Ms Bryson when
another employee was absent on WorkCover and a challenge by Ms Bryson to a reduction in her hours of work during
vacation periods. According to Mr Cranny, these matters were concluded.
Mr Cranny confirmed that in mid-October 2004, Ms Bryson brought to his attention the fact that there were pay
discrepancies. This had been investigated, and it had been established that Ms Bryson had been paid as a casual
employee rather than a part-time employee. Mr Cranny conceded that this was an error. A letter had been sent to
Ms Bryson acknowledging the error and a backpay adjustment of some $900.00 was made. It was also brought to
Ms Bryson's attention that as a casual employee she was paid a higher rate than her usual part-time rate of pay. A
number of options were offered to Ms Bryson either to accept that the higher rate of pay compensated her for leave
entitlements during the period in question, or to refund the overpayment over a suitable period of time, and to have her
leave entitlements for that period credited.
Mr Hildenbeutel was responsible for verifying the number of hours worked by Ms Bryson each fortnight. This was
done by signing off on the time sheet submitted by Ms Bryson. It is the College's policy that staff should work in
accordance with their rosters, and those rosters may change from time to time. Whenever rosters were changed,
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Mr Hildenbeutel spoke to staff concerned and got their agreement. Generally Ms Bryson agreed to roster changes, but
on one occasion challenged a change which reduced the number of cleaning hours she worked over the school vacation
period.
In his affidavit (Exhibit 12) Mr Hildenbeutel denied that he instructed Ms Bryson to falsify time sheets. Another
employee, Ms Astin, was absent following a workers' compensation claim. Ms Bryson had displayed an interest in
working extra hours, and Mr Hildenbeutel told Ms Bryson that staff were not to work overtime unless it was approved
by Mr Cranny. Ms Bryson helped Mr Hildenbeutel work out how the additional hours could be recorded on her time
sheet so that overtime would not be payable. Mr Hildenbeutel did not believe that this arrangement was wrong as he
was trying to help Ms Bryson by giving her extra hours, and Ms Bryson agreed with the arrangement when it was
entered into.
In his oral evidence, Mr Hildenbeutel said that Ms Bryson had been working Ms Astin's shifts during her absence and
being paid at overtime rates for that work. Mr Cranny had directed that overtime was to be reduced. Mr Hildenbeutel
told Ms Bryson that this meant the additional shifts would need to be given to another staff member. Ms Bryson
became agitated and said that she wanted to keep those hours. Ms Bryson and Mr Hildenbeutel had agreed that time
sheets would be completed so that some of the hours actually worked on one day which would be required to be paid as
overtime, would be recorded as if they had been worked on another day, so that they would not appear to be overtime
hours. Because Mr Hildenbeutel knew that Ms Bryson was entitled to overtime payments, he would add additional time
to the hours allocated to other days. For example, if Ms Bryson worked ten hours on a particular day, two of those
hours would be recorded on her time sheet as being worked on another day, and an additional hour also added the two
hours. According to Mr Hildenbeutel, Ms Bryson agreed with this process and signed time sheets implementing it.
4. Relevant Provisions of the Agreement and the Award
4.1 The Agreement
Relevant provisions of the Agreement are as follows:
"3.1 Definitions
(1) 'Full Time Employee' is one engaged to work 38 ordinary hours per week on the basis of 52 weeks per
annum.
(2) 'Part-time Employee' is an employee engaged to work a constant number of ordinary hours of less then 38 per
week on the basis of 52 weeks per annum.
...
(4) 'Casual Employee' shall mean any employee engaged as such and who is employed by the hour on the class
of work for which he or she is engaged.
...
3.3 Wages and Allowances
...
(4) Uniforms
(a) Where an Employer requires any employee to wear any special uniform, dress or clothing such shall be
supplied by the Employer and such employee shall be paid an allowance of $5.00 per week unless such uniform,
dress or clothing is laundered by the Employer.
...
(6) Weekend Penalty - All ordinary time worked by full-time employees (other than casuals and part-time
employees) on a Saturday or Sunday shall be paid for at the rate of time and a half.
(7) Casual Employees
(a) Casual employees shall be paid one-thirty-eighth (1/38) of the appropriate weekly rate of pay for the
classification concerned and shall be paid for a minimum of two hours per engagement.
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(b) In addition to the rate prescribed in subclause (a) the following loadings shall be payable:
19% for all ordinary hours worked.
69% where the rate of pay is specified as time and a half.
119% where the rate of pay is specified as double time.
169% where the rate of pay is specified as double time and a half.
...
4.1 Hours of Work
The ordinary working hours shall be 7 hours and 36 minutes per day, 38 hours per week over five (5) days per
week with two continuous days off per week. Such ordinary hours may be worked within a maximum spread of
14 hours, inclusive of an unpaid meal break. There shall not be more than one break during the ordinary daily
working hours.
Subject to clause 4.2 (Implementation of 38 Hour Week) the ordinary hours of work for all employees engaged
on a weekly hiring other than part-time employees shall be an average of 38 hours per week to be determined within
the following work cycles:-
(a) 38 hours within a work cycle not exceeding seven consecutive days; or
(b) 76 hours within a work cycle not exceeding fourteen consecutive days; or
(c) 114 hours within a work cycle not exceeding twenty-one consecutive days; or
(d) 152 hours within a work cycle not exceeding twenty-eight consecutive days.
Provided that where the Employer and the employees in a work section or sections agree, 160 hours may be
worked within a work cycle not exceeding twenty-eight consecutive days with provision for one rostered day off per
four-week cycle which may be accumulated and taken as paid time during periods of school vacations or paid out on
termination.
A roster showing starting and ceasing times for the ordinary hours of duty of weekly employees and the times
between which the period is allotted for each meal together with the surname and initials of each employee shall be
prepared by the Employer and shall be posted in a conspicuous place or places accessible to the employees
concerned. The roster shall be alterable by mutual consent at any time or by amendment of the roster on seven days'
notice. Where practicable, two weeks' notice of rostered days off shall be given provided that the days off may be
changed by mutual consent or as rendered necessary by the absence of other employees from duty, shortage of staff,
or other cause over which the Employer has no control and in which cases twelve hours' notice shall be sufficient:
Provided that rosters shall provide for a minimum of eight (8) hours break between the finish of ordinary hours on
one day and the commencement of ordinary hours on the following day.
Night shift workers shall work the same number of hours in unbroken shifts as day workers and the period of
night duty shall not exceed 4 weeks in any one period and every employee coming off night duty shall have
24 hours' leave before again resuming duty. No employee shall be asked to again do night duty unless with his own
consent until he has worked a period of at least four weeks on day work.
...
4.6 Overtime
(1) All work done in excess of the ordinary hours in any one day or before the recognised starting time or after
the recognised ceasing time shall be deemed to be overtime and shall be paid for at the rate of time and a half for the
first three hours and double time thereafter.
(2) Any employee who is required to continue working for more than one and a half hours after the ordinary
ceasing time shall be allowed thirty minutes for a meal for which no deduction of pay shall be made. A further
forty-five minute meal break after each additional four hours worked shall be allowed, for which no deduction of
pay shall be made.
(3) All time worked on an employee's rostered day off shall be paid for at the rate of time and a half with a
minimum payment as for three hours worked.
(4) Where an employee works sufficient overtime to accrue a meal break as provided in subclauses (2) and (3),
such employee shall be paid the sum of $7.00 as meal money or, as an alternative, the Employer shall supply free to
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such employee a suitable meal in respect of each meal break provided for herein.
(5) Where an employee has been previously notified of the requirement to work overtime and such overtime is
not then worked, in the event of the employee having provided a meal as a result thereof, the employee shall be paid
the $7.00 meal allowance as provided in subclause (4) herein notwithstanding the fact that no such overtime is
worked.
(6) Any employee recalled to work overtime after having left the Employer's premises shall be paid for not less
than two hours at overtime rates in respect of each such recall: Provided that the provisions of this subclause shall
not apply where such overtime is worked continuously with ordinary hours of work.
(7) When an employee having worked overtime finishes work at a time when the usual means of transport is not
available, the Employer shall provide equivalent safe alternate transport with cost to the Employee's residence.
(8) An employee who works so much overtime between the termination of ordinary work on one day and the
commencement of work on the next day that the employee has not had at least eight consecutive hours off duty
without loss of pay for ordinary working time occurring during such absence. If on the instructions of the Employer
such employee resumes or continues work without having had such eight consecutive hours off duty, the employee
shall be paid double rates until released from duty for such period and the employee shall be entitled to be absent
until receiving eight consecutive hours off duty without loss of pay for ordinary working time occurring during such
absence.
(9) Notwithstanding the rate prescribed in subclause (1) hereof, there may be an agreement in writing between
the employee and employer to take time off with pay equivalent to the amount for which payment would otherwise
have been made. Such equivalent accumulated time must be taken within four weeks from the time of accrual, or
otherwise payment shall be made.
4.7 Meal Breaks
(1) Permanent employees shall be entitled to a daily meal break of not less than thirty minutes nor more than one
hour's duration, to be taken between four and six hours after the commencement of work, or as at any other time as
has been mutually agreed between the employer and the majority of employees.
(2) Part-time employees and casual employees who are engaged to work for more than five hours a day shall be
entitled to a meal break of not less than thirty minutes nor more than one hours' duration.
(3) All work performed during a recognised meal break shall be deemed overtime and shall be paid for at the rate
of double time. Such rate shall be continued until a break of the usual duration for a meal is allowed.
...
4.9 Part-Time Employees
(1) 'Part-time Employee' shall mean an employee, other than a 'casual employee' as defined in Clause 3.1 of this
Agreement, who is engaged to work rostered regular hours each fortnight with a minimum engagement of fifteen
(15) hours per fortnight. Such roster shall show the starting and ceasing times and the days upon which an
employee is engaged to work as well as the number of hours to be worked each fortnight or as otherwise arranged
by mutual agreement between the Employer and the Union to suit the exigencies of the establishment.
(2) The ordinary daily working hours shall be worked continuously excluding meal breaks, and shall not be less
than three (3) hours on any day or six (6) hours on any day where a split shift is worked. Such split shifts shall be
worked by mutual agreement between the employer and employee. Such daily hours may be worked within a
maximum spread of 14 hours, inclusive of an unpaid meal break from the starting time. There shall not be more
than one break during the ordinary daily working hours.
(3) A part-time employee shall be paid the hourly rate prescribed by the Agreement and in addition shall be
entitled to a pro rata payment of the shift premium where appropriate.
(4) A part-time employee shall be entitled to pro rata annual leave, sick leave, long service leave, and
bereavement leave on the same basis as permanent employees and in accordance with subclause (6) hereof. As well,
when a statutory duty holiday falls upon a day which would otherwise have been a part-time employee's normal
working day, a part-time employee shall be entitled to be paid for that statutory holiday. When a statutory holiday
occurs during a period of the employee's annual leave an extra day for each such day so occurring.
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(5) A part-time employee who works more than the ordinary prescribed in Clause 4.1 shall be paid overtime in
accordance with Clause 4.6 of the Agreement.
(6) Subject to the provisions contained herein, all other provisions of the Agreement relevant to permanent
employees shall apply to part-time employees.
(7) The Employer will advise all employees upon engagement that in the event of changed client utilisation or
services it becomes necessary for the Employer to reduce the working hours of part-time employees, the preference
clause will operate.".
4.2 The Award
Relevant provisions of the Award are as follows:
"4.1 Employment categories
4.1.1 Employees covered by this Award shall be advised in writing of their employment category upon
appointment. Employment categories are:
(a) Full-time;
(b) Part-time (as prescribed in clause 4.3); and
(c) Casual (as prescribed in clause 4.4).
4.2 Full-time employment
'Full-time Employee' means a person who is engaged to work on a full-time basis.
4.3 Part-time employment
4.3.1 Part-time employment is defined as an employee who works a lesser number of hours than constitute full-
time employment under this Award and who works a minimum number of hours, being 15 per week; and
a maximum number of hours, being 38 per week; and a minimum number of consecutive hours, being
3 per day; with a regular number of ordinary hours per week; and any work performed by a part-time
employee outside of the ordinary rostered hours to be paid as overtime.
4.3.2 Any variations to work patterns of a part-time employee are to be in accordance with Award provisions
for full-time employees.
4.3.3 A part-time employee is to be paid on a pro rata basis (proportionate to the number of hours worked) for
wages and employment conditions as specified in this Award for full-time employment for the same kind
of work.
4.3.4 All other conditions for part-time employment other than those specified above, shall be those that apply
to full-time employment.
4.3.5 A part-time employee shall be paid the hourly rate prescribed by the Award and in addition shall be
entitled to a pro rata payment of the shift premium where appropriate.
4.3.6 An employee who does not meet the definition of a part-time employee and who is not a full-time
employee will be paid as a casual employee in accordance with this Award.
Where an employee and the employer agree, part-time employment may be converted to full-time and
vice versa on a permanent basis or for a specified period of time. If such as employee transfers from full-
time to part-time (or vice versa) all accrued Award and legislative entitlements shall be maintained.
Following transfer to part-time employment accrual will occur in accordance with the provisions relevant
to part-time employment.
4.4 Casual employment
4.4.1 A casual employee means any employee engaged as such and who is employed by the hour on the class
of work for which the employee is engaged.
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4.4.2 Casual employees
(a) Casual employees shall be paid 1/38th of the appropriate weekly rate of pay for the classification
concerned and shall be paid for a minimum of 2 hours per engagement.
(b) In addition to the rate prescribed in clause 4.4.2 (a) the following loading shall be payable:
23% for all ordinary hours worked.
...
5.3 Allowances
5.3.1 Divisional and District allowances
Adult employees in the Mackay Division shall be paid 90 cents per week and adult employees in the Eastern
District of the Northern Division shall be paid $1.05 per week in addition to the rates above prescribed.
Adult employees in the Western District of the Southern Division shall be paid $1.05 per week and adult
employees in the Western District of the Northern Division shall be paid $3.25 per week in addition to the rates
above prescribed.
5.3.2 Uniforms
(a) Where an employer requires any employee to wear any special uniform, dress or clothing such shall
be supplied by the employer and such employee shall be paid an allowance of $5.00 per week unless
such uniform, dress or clothing is laundered by the employer.
(b) Where employees are working in wet areas and it is therefore necessary that waterproof or other
protective clothing such as waterproof boots, aprons or gloves be worn by an employee, they shall be
supplied with same without cost to the employee. Such protective clothing shall remain the property
of the employer.
...
6.1 Hours of Work
6.1.1 Operation of 38 hour week
(a) Subject to clause 6.1.2 (Implementation of a 38 hour week), 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 cycle not exceeding 7 consecutive days;
(ii) 76 hours within a work cycle not exceeding 14 consecutive days;
(iii) 114 hours within a work cycle not exceeding 21 consecutive days; or
(iv) 152 hours within a work cycle not exceeding 28 days.
(b) The ordinary hours of work shall not exceed 10 hours per day.
(c) Where necessary, employees shall commence their ordinary hours and breaks at different times to
ensure continuity of service.
(d) The ordinary starting and finishing times may be altered by the employer with the agreement of the
majority of employees concerned to suit geographic, safety, climatic or traffic conditions:
Provided that any such altered starting and finishing time will not invoke any penalty payment that
would not be payable if the Award spread of hours was observed.
(e) 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.
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(f) Where a rostered day falls on a public holiday, the following day may be taken where practicable in
lieu thereof or the employee and the employer may agree to an alternative day off duty as substitution.
(g) Pay averaging
Employees shall be entitled to a week's wages in accordance with clauses 5.2 for each week of the cycle.
(h) The entitlement to a rostered day off on full pay shall be subject to the following:
(i) each day of paid leave taken (not including annual leave, long service leave) and any public holiday
occurring during any cycle of 4 weeks shall be regarded as a day worked for accrual purposes.
(ii) an employee who has not worked a complete 4 week cycle in order to accrue a rostered day off shall
be paid a pro rata amount for credits accrued for each day worked in such cycle payable for the
rostered day off (i.e. an amount of 24 minutes for each 8 hour day worked or 2 hours for each
40 hours worked).
For the purposes of clause 6.1.1(h), 'worked' includes paid leave referred to in clause 6.1.1(h)(i).
(i) Sickness on a rostered day off which has resulted from the 19 days month work cycle
Where an employee is sick or injured on their rostered day off the employee shall not be entitled to sick
pay nor shall their sick pay entitlement be reduced as a result of the sickness or injury on that day.
(j) Payment of wages
In the event that an employee by virtue of the arrangement of the employee's ordinary working hours is
rostered off duty on a day which coincides with pay day, such employee shall be paid no later than the
working day immediately following such pay day.
6.2 Roster posting
A roster showing starting and ceasing times for the ordinary hours of duty of weekly employees and the
times between which the period is allotted for each meal together with the surname and initials of each
employee shall be prepared by the employer and shall be posted in a conspicuous place or places
accessible to the employees concerned. The roster shall be alterable by mutual consent at any time or by
amendment of the roster on 7 days' notice. Where practicable, 2 weeks' notice of rostered days off shall be
given provided that the days off may be changed by mutual consent or as rendered necessary by the
absence of other employees from duty, shortage of staff, or other cause over which the employer has no
control and in which cases 12 hours' notice shall be sufficient:
...
6.3 Meal breaks
6.3.1 Permanent employees shall be entitled to a daily meal break of not less than 30 minutes nor more than
one hour's duration, to be taken between 4 and 6 hours after the commencement of work, or as at any
other time as has been mutually agreed between the employer and the majority of employees.
6.3.2 Part-time employees and casual employees who are engaged to work for more than 5 hours a day shall be
entitled to a meal break of not less than 30 minutes nor more than one hour's duration.
6.3.3 All work performed during a recognised meal break shall be deemed overtime and shall be paid for at the
rate of double time. Such rate shall be continued until a break of the usual duration for a meal is allowed.
...
6.5 Overtime
6.5.1 All work done in excess of the ordinary hours in any one day or before the recognised starting time or
after the recognised ceasing time 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.
6.5.2 Any employee who is required to continue working for more than one and a-half hours after the ordinary
ceasing time shall be allowed 30 minutes for a meal for which no deduction of pay shall be made. A
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further 45 minute meal break after each additional 4 hours worked shall be allowed, for which no
deduction of pay shall be made.
6.5.3 All time worked on an employee's rostered day off shall be paid for at the rate of time and a-half with a
minimum payment as for 3 hours worked.
6.5.4 Where an employee works sufficient overtime to accrue a meal break as provided in clauses 6.5.2 and
6.5.3, such employee shall be paid the sum of $9.60 as meal money or, as an alternative, the employer
shall supply free to such employee a suitable meal in respect of each meal break provided for herein.
6.5.5 Where an employee has been previously notified of the requirement to work overtime and such overtime
is not then worked, in the event of the employee having provided a meal as a result thereof, the employee
shall be paid the $9.60 meal allowance as provided in clause 6.5.4 notwithstanding the fact that no such
overtime is worked.
6.5.6 Any employee recalled to work overtime after having left the employer's premises shall be paid for not
less than 2 hours at overtime rates in respect of each such recall:
Provided that the provisions of clause 6.5.6 shall not apply where such overtime is worked continuously
with ordinary hours of work.
6.5.7 When an employee having worked overtime finishes work at a time when the usual means of transport is
not available, the employer shall provide equivalent safe alternate transport without cost to the employee's
residence.
6.5.8 An employee who works so much overtime between the termination of ordinary work on one day and the
commencement of work on the next day that the employee has not had at least 8 consecutive hours off
duty between those times shall, subject to clause 6.5.8, be released after completion of such overtime until
the employee has had 8 consecutive hours off duty without loss of pay for ordinary working time
occurring during such absence. If on the instructions of the employer such employee resumes or
continues work without having had such 8 consecutive hours off duty, the employee shall be paid double
rates until released from duty for such period and the employee shall be entitled to be absent until
receiving 8 consecutive hours off duty without loss of pay for ordinary working time occurring during
such absence.
6.5.9 Notwithstanding the rate prescribed in clause 6.5.1, there may be an agreement in writing between the
employee and employer to take time off with pay equivalent to the amount for which payment would
otherwise have been made. Such equivalent accumulated time must be taken within 4 weeks from the
time of accrual, or otherwise payment shall be made.".
5. Issues for Determination
It was apparent from the evidence that there is no real dispute about the hours worked by Ms Bryson. Ms Bryson
agreed that the time sheets tendered to the Commission (Exhibit 9) are accurate, other than for the period 4, 5, 11, 12,
18, 19, 25 and 26 August; 1, 2, 8, 9, 15 and 16 September; and 6 and 7 October 2003. Essentially, the issues in dispute
centre on the differing interpretations placed by the parties on various provisions of the Agreement and the Award
relating to overtime, breaks between work periods, overtime callouts, overtime meal breaks and the manner of working
ordinary hours.
In relation to the error in paying Ms Bryson as a casual employee for the period from 13 May 2005 until 14 October
2005, Ms Bryson is not claiming for leave lost as a result. Rather, Ms Bryson's claim for this period is that she wants to
know who approved the change to give her closure. Further, Ms Bryson claims that she was underpaid for this period
due to the College failing to correctly apply Agreement provisions relating to overtime callouts. Given that the College
concedes that this was an error, and the evidence of steps taken to address that error, I cannot take the matter further,
other than to deal with Ms Bryson's claim in relation to the Agreement provisions relating to overtime callouts.
The College concedes there has been an underpayment of wages to Ms Bryson, and other aspects of Ms Bryson's claim
are not in issue.
6. Conclusions
I understand that another Member of the Commission may have considered various aspects of Ms Bryson's claim in
conciliation proceedings. I also understand that views may have been expressed, and that a recommendation was made
about the calculation of some aspects of Ms Bryson's claim. However, those views were expressed in conciliation
proceedings where the focus is on resolving a dispute rather than a strict award interpretation, and I am not bound by
those views.
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6.1 Ordinary hours of work for casual employees under the Agreement
Given that Ms Bryson was initially employed by the College on a casual basis, the first issue for determination is the
manner in which ordinary hours for casual employees may be worked under the Agreement. For the following reasons,
I do not accept the submissions of either party on this issue. The terms of the Agreement in relation to hours of work
for casual employees are far from clear. It could be said that the ordinary hours for casual employees are set by default
rather than by virtue of a specific provision. Clause 3.1(4) which defines the term "Casual Employee" provides that
employment is by the hour, but makes no reference to the maximum number of ordinary hours which can be worked by
casual employees. Clause 3.3(7)(a) establishes the basis for calculating the rate of pay for casual employees and
requires a minimum payment of two hours for each engagement. Unlike part-time employees there are no other
provisions of the Agreement dealing with hours of work for casual employees.
Hours of work are dealt with generally in clause 4.1 of the Agreement. The first paragraph of Clause 4.1 of the
Agreement does not specifically refer to casual employees, and contains provisions which arguably do not apply to such
employees. The second and fourth paragraphs of clause 4.1, by virtue of the reference to employees on weekly hiring,
excludes casual employees. Other provisions of Part 4 of the Agreement relating to rostered days off and averaging of
hours do not apply to casual employees, who are paid for each hour that they work. This is indicative that casual
employees are excluded from the provisions of clause 4.1 of the Agreement.
If this view is taken the result is that there are no maximum ordinary hours for casual employees prescribed by the
Agreement. This would be an unusual situation, and if it was the case then s. 9 of the Industrial Relations Act 1999
would probably apply. However, this was not argued on behalf of the College, and it was accepted by both parties in
these proceedings that the maximum ordinary hours for casual employees are 7.6 per day and 38 per week. It would
appear to be contrary to standard hours of work provisions in industrial instruments to find that an Agreement which
sets maximum ordinary hours for weekly employees had no such provisions for casual employees. On that basis
I accept that for the period of Ms Bryson's engagement as a casual employee under the terms of the Agreement, the
maximum number of ordinary working hours on any one day was 7.6, and in any week the maximum number of
ordinary working hours was 38.
Reading the Agreement as a whole, so that all of its provisions have effect, the ordinary hours for casual employees of
7.6 per day, may be worked within a 14 hours spread, allowing for any meal breaks as provided in clause 4.7 and rest
pauses as provided in clause 4.8. Ordinary hours for casual employees can be split into two periods within the 14 hour
spread. However, where ordinary hours are split into two periods, each period is a separate engagement to which the
minimum payment of two hours applies.
If provisions of the first paragraph of clause 4.1 dealing with maximum daily and weekly hours of work, and the
fourteen hour spread of ordinary hours apply by default to casual employees, then the provisions of that paragraph
requiring employees to be given two consecutive days off must also apply. It is equally arguable that such a provision
relates to weekly full-time employees, or at least to employees working 38 hours per week. However, even if this
provision did apply to casual employees working less than 38 hours per week such as Ms Bryson, I do not accept that an
employee who does not have two continuous days off per week, is entitled to be paid for work on the sixth and seventh
day at overtime rates. Overtime is defined in clause 4.6 as work done in excess of ordinary hours in any one day or
before the recognised start time or after the recognised ceasing time.
Time worked by an employee on the sixth or seventh day of a week, where work has been performed on the first five
days of that same week, does not come within the definition of overtime in clause 4.6(1). Further, such time is not
worked on a rostered day off to attract the provisions of clause 4.6(3). A rostered day off is accrued by an employee
working a 38 hour week in the manner provided for in clause 4.1. For a casual employee days when no work is
performed are not rostered days off. The Award does not prescribe a penalty where a casual employee does not have
two consecutive days off. While this may constitute a breach of the Award, that is not a matter which can be dealt with
by the Commission as previously constituted. Accordingly, I reject Ms Bryson's claim for overtime rates for the sixth
and seventh day in any week where she was rostered to work on the other five days.
6.2 Ordinary hours of work for part-time employees under the Agreement
In my view, the provisions of clause 4.1 specifying hours daily and weekly hours of work do not apply to part-time
employees. The ordinary working hours for part-time employees are established by clause 3.1(2) and clause 4.9. These
clauses stand alone and are not supplemented by the provisions in the first paragraph of clause 4.1. I can also see no
basis for reading the Award so that clause 4.1 derogates from clauses 3.1(2) and 4.9. By virtue of the operation of
clause 3.1(2) and clause 4.9 of the Agreement, the ordinary hours of work for part-time employees must be worked
within the following parameters:
ordinary hours must be less than 38 per week;
ordinary hours must be rostered so that they are regular;
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a part-time employee must be rostered to work for a minimum of 15 ordinary hours per fortnight;
a minimum number of three hours must be rostered each day upon which work is performed, and a six hour
minimum applies where a split shift is worked;
ordinary hours for part-time employees may be worked within a daily spread of 14 hours, including meal breaks
and rest pauses to which part-time employees are entitled under the provisions of clauses 4.7 and 4.8 of the
Agreement; and
ordinary hours for part-time employees may be split into two periods within the 14 hour spread - split shifts.
Provided that these parameters are met, a part-time employee may be rostered to work more than 7.6 ordinary hours in
any one day. The daily limits are set by the 14 hour spread and meal break entitlements. Further, the provisions
relating to the establishment of rosters in clause 4.1 apply to part-time employees on the basis that they are weekly
employees, and there are no other provisions relating to the same matter. It is also clear that all changes to Ms Bryson's
roster were implemented by agreement between Ms Bryson and the College in accordance with the requirements in
clause 4.1 of the Agreement.
6.3 Overtime provisions under the Agreement
Overtime is payable under clause 4.6 of the Agreement with respect to all hours worked in excess of the ordinary hours
in one day, or before the recognised starting time or after the recognised ceasing time. During the period when
Ms Bryson was employed as a casual employee under the Agreement, she was entitled to be paid at overtime rates for
hours worked in excess of 7.6 in any one day or 38 in any week. During the period from 27 January 2003 to 20 April
2005 when Ms Bryson was a part-time employee under the Agreement she was entitled to be paid at overtime rates for
hours worked in excess of ordinary hours rostered in accordance with the parameters set out above, or for hours worked
before the recognised starting time or after the recognised ceasing time.
Hours worked by Ms Bryson between 4 August and 7 October 2003, when she filled in for Ms Astin, were a change to
her roster, agreed between Ms Bryson and the College. Ms Bryson is not entitled to be paid for these hours at overtime
rates simply because they are in addition to her own hours or because those hours were previously worked by another
employee. Rather Ms Bryson is entitled to payment of overtime for these hours, where as a result of working them, her
hours of work were outside of the parameters for ordinary hours which may be worked by part-time employees under
the Agreement. For the reasons set out above, during the period Ms Bryson was employed on a part-time basis under
the Agreement, she was not entitled to be paid at overtime rates simply because her ordinary working hours as varied
from time to time exceeded 7.6 on any given day.
In my view, casual and part-time employees are entitled to the provisions of clause 4.6(8) of the Agreement so that they
have eight consecutive hours off duty between ceasing ordinary work on one day and starting ordinary work on the next
day. Casual and part-time employees may also be entitled to the provisions of clause 4.6(6) of the Agreement where
they are recalled to work overtime after leaving the employer's premises. However, this provision would not apply
where an employee was working a split shift in accordance with a roster, even in circumstances where some overtime
was worked at the start or the completion of the split shift. In the present case, I am not satisfied that Ms Bryson has
established an entitlement to any such payment. I am unable to be satisfied that where Ms Bryson claims to have
attended for work twice on the same day, that such attendance was not in accordance with being rostered to work a split
shift rather than a recall to work overtime. Further, given that Ms Bryson's diaries do not show the starting and
finishing times of periods of work, it is not established on the balance of probabilities that she did attend for work twice
on the one day. Accordingly, I reject Ms Bryson's claim for payment under this provision of the Agreement.
It is also the case that overtime meal breaks are only payable where an employee continues to work for more than one
and a-half hours outside the ordinary ceasing time. Even where split shifts are worked, where the second period of
work includes overtime so that the employee works an additional one and a-half hours after the maximum ordinary
daily working hours, employees are entitled to an overtime meal break in accordance with clause 4.6.2 of the
Agreement.
6.4 Ordinary hours of work for part-time employees under the Award
Given that Ms Bryson was employed on a part-time basis at all times when the Award applied with respect to her claim,
it is not necessary to examine the operation of the Award with respect to casual employees. The provisions of the
Award governing ordinary hours of work for part-time employees are clearer than those of the Agreement. Ordinary
hours of work for part-time employees must be worked in accordance with clause 4.3 of the Award. Clause 4.3 of the
Award establishes the following parameters with respect to ordinary hours of work for part-time employees.
In accordance with clause 4.3.1 of the Award, ordinary hours for part-time employees must be less than ordinary hours
for full time employees - i.e. less than 38 ordinary hours per week. A minimum of 15 ordinary hours per week and
three ordinary hours per day must be worked by part-time employees. Somewhat confusingly (given that the ordinary
hours for part-time employees must be less than those for full time employees) the maximum number of ordinary hours
for part-time employees is set at 38 per week. There must be a regular number of ordinary hours per week and by virtue
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of clause 4.3.2, any variations to work patterns for part-time employees are to be in accordance with Award provisions
for full time employees. By virtue of clause 6.2 of the Award rosters may be altered by mutual agreement at any time,
or with seven days notice by the employer. There is no evidence that any changes to Ms Bryson's roster were
implemented other than as provided for in the Award - that is with Ms Bryson's agreement.
Clause 4.3 of the Award does not prescribe a maximum number of ordinary hours which can be worked by part-time
employees on any day. However, clause 4.3(2) does provide that all other conditions for part-time employment other
than those prescribed in clauses 4.31 to 4.3.3, shall be those that apply to full time employment. Significantly, clause
6.1.1(b) which deals with ordinary hours of work for full-time employees provides that ordinary hours of work shall not
exceed ten hours per day. Because clause 4.3 of the Award is silent as to the maximum number of ordinary hours per
day which can be worked by part-time employees, clause 6.1.1(b) applies to establish a maximum of ten ordinary hours
per day.
Further, there is no entitlement for employees under the Award to be given two consecutive days off per week. As a
part-time employee under the Award, Ms Bryson was not entitled to rostered days off, and the penalties applicable for
work on such days do not apply where Ms Bryson worked on the sixth or seventh day of any week, where she had
already worked on the first five days, or where Ms Bryson's roster did not provide for two consecutive days off per
week.
6.5 Overtime for part-time employees under the Award
Overtime is defined in clause 6.5 of the Award as all work done in excess of the ordinary hours on any one day or
before the recognised starting time or after the recognised finishing time. For the reasons set out in 6.4 above, during
the period when Ms Bryson worked under the terms of the Award, she was entitled to overtime only when she worked
in excess of ten ordinary hours in any one day or outside her normal start or finish time. There is no evidence of
Ms Bryson being required to work more than 38 hours in any week during the period her employment was governed by
the Award. It is accordingly not necessary to resolve the conflict in clause 4.3.1 in relation to the maximum number of
weekly hours specified for casual employees in clause 4.3.
Part-time employees are entitled to an overtime meal break under clause 6.5.2 of the Award where they work 1.5 hours
after their usual ceasing time.
The provisions of the Agreement enabling split shifts to be worked, are not found in the Award. Accordingly, the
Award does not provide for employees to be rostered for two separate periods of work on the one day, other than when
such periods are punctuated by meal breaks or rest pauses. However, as previously noted, Ms Bryson's diaries do not
indicate the times that various periods of work started and finished on any given day. Further, the roster providing for
two separate work periods on one day was in effect while Ms Bryson was employed under the Agreement which did
provide for split shifts. There is no evidence of any such roster during the period the Award applied. Accordingly, I am
unable to be satisfied that the provisions of clause 6.5.6 prescribing penalties for employees recalled to work overtime,
applied to Ms Bryson while her employment was covered by the Award and I reject that aspect of her claim.
6.6 Other aspects of Ms Bryson's claim
Other aspects of Ms Bryson's claim are either unsustainable or were not pursued. Despite spending time in the hearing
cross-examining witnesses about not being paid for sick leave, Ms Bryson did not pursue this matter and provided
insufficient evidence to justify this aspect of her claim. Similarly, Ms Bryson sought to establish who authorised the
purported change to her contract of employment in 2005 rather than to pursue any claim for unpaid wages in respect of
leave for that period. This was simply irrelevant, particularly given the concession on behalf of the College that the
change was an error and should not have occurred. The calculations attached to Ms Bryson's application indicate that a
claim for a uniform allowance is included. Ms Bryson has not established that she was required to wear a uniform.
There is no evidence upon which a claim for a uniform allowance could be based. I reject this aspect of the claim.
Ms Bryson's claims for weekend penalty rates under clauses 3.3(6) of the Agreement and 6.6.2 of the Award are
misconceived. Both clauses clearly state that they have no application to part-time or casual employees. Similarly, for
reasons set out above, Ms Bryson was not entitled to overtime payments for work on rostered days off under clauses
4.6.3 of the Agreement and 6.5(3) of the Award, because as a casual and later a part-time employee, she did not work in
a manner whereby she accrued rostered days off. Other aspects of Ms Bryson's claim have been conceded on behalf of
the College.
I do not condone the actions of Mr Hildenbeutel in participating in the alteration of Ms Bryson's time sheets. However,
I accept that Ms Bryson was not coerced, was a willing participant, and to some extent an instigator of what occurred.
I also accept that Mr Hildenbeutel was principally motivated to give Ms Bryson the additional hours that she sought and
took steps to attempt to compensate Ms Bryson for the lost overtime, by allowing her to claim wages for hours not
worked. Having heard Ms Bryson's claim, and witnessed her ability to press arguments for what she believes are her
entitlements, I can well understand why Mr Hildenbeutel might have sought to appease Ms Bryson. Regardless of the
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reasons for the changes to the time sheets, the result was that Ms Bryson was underpaid for that period, and she is
entitled to mount a claim on that basis. In my view Mrs Bryson will be adequately compensated for any underpayment
for this period by the amount ordered to be paid to her in 6.7 below.
6.7 Order
On balance, I have decided to award Ms Bryson the amount conceded on behalf of the College at the outset of these
proceedings. I have reached this conclusion for the following reasons. I generally accept the calculations undertaken
by Mr O'Neill in preference to those of Ms Bryson.. Ms Bryson accepted that her time sheets were correct, other than
during the period between 4 August and 7 October 2003 when her time sheets were altered in conjunction with
Mr Hildenbeutel. The calculations on behalf of the College were made with reference to those time sheets. Many of
the claims made by Ms Bryson are misconceived in that they are based on misinterpretation of provisions of the
Agreement and the Award. Ms Bryson has not taken into account a period of six minutes each day at ordinary rates.
While this may appear to be an insignificant matter in the eyes of Ms Bryson, over the period of the claim it is likely
that six minutes on each day that overtime is claimed is an amount of some substance.
While the calculations conducted by Mr O'Neill are incorrect in relation to overtime meal payments, this is more than
offset by the fact that the offer made on behalf of the College is calculated to the disadvantage of the College in terms of
the provisions of the Agreement and the Award. In short, the calculations on behalf of the College are predicated on
part-time employees under both the Agreement and the Award being limited to working 7.6 ordinary hours in a day.
While this method of calculation is understandable given the lengthy history of Ms Bryson's claim and the conciliation
proceedings conducted by another Member of the Commission, it is not correct. I have no doubt that if a second
calculation was done in accordance with the terms of the Agreement and the Award, the amount owed to Ms Bryson
would be less than the amount conceded by the College. Commendably, the College did not seek to reserve its position
in relation to the calculation in the event that the Commission ruled that a lesser amount was owed to Ms Bryson. This
is understandable given the inordinate amount of time and effort which has been expended in relation to Ms Bryson's
claims.
I order that St Brendan's College, Yeppoon, pay to Ms Renate Bryson the amount of $8,595.86 within seven days of the
date of release of this decision.
I.C. ASBURY, Commissioner.
Hearing Details:
2007 25 May
12 and 13 June
Released: 12 December 2007
Appearances:
The applicant on her own behalf.
Mr K. Cuddihy of the Queensland Catholic Education Commission
for the respondent.
Government Printer, Queensland
The State of Queensland 2007.
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Official source: https://www.sclqld.org.au/caselaw/QIRC/2007/093