Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland v Australian Hardboards Limited [2006] QIRC 141 (2006) 183 QGIG 850

[Extract from Queensland Government Industrial Gazette, dated 10 November, 2006, Vol. 183, No. 15, pages 850-852] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 278 - application to recover unpaid wages Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland AND Australian Hardboards Limited (B/2006/126) COMMISSIONER EDWARDS 31 October 2006 DECISION By application filed on 2 June 2006 and amended application filed on 15 June 2006, the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMEPKU) sought to recover unpaid wages from Australian Hardboards Limited (the respondent) on behalf of Michael Allery, an Asset Reliability Controller within the Engineering Department. The matter was listed for Call Over on 26 June 2006 and a Further Directions Order was issued on 27 June 2006. The matter was heard on 30 August 2006. Prior to 27 March 2006 the terms of employment of Mr Allery were governed by both the Australian Hardboards Limited Certified Agreement 2005-2007 (the Agreement) as well as the Engineering Award - State 2002 (the Award). As such the instruments applied to the mechanical and electrical maintenance work. Application C2005/4343 was heard in the Australian Industrial Relations Commission (AIRC) concerning meal breaks for production workers covered by Federal industrial instruments. The application was not successful. Subsequently, the respondent reviewed the way payments were made for meal allowances with the changes affecting all employees. In evidence Mr Allery outlined that he had been paid meal allowances whenever he worked 90 minutes beyond the end of ordinary time. Such payment was made whether they had been notified on a previous day that they would be required to work the overtime. Following a review, notice 06/009 was issued. As a result he was paid meal allowance on one occasion when he was specifically requested to work overtime on an afternoon to urgently complete work on some pumps in accordance with the memorandum of 14 February 2006. He had been marking meal allowances on timesheets as he had been instructed that a claim for meal allowances could be made if specifically requested to perform overtime on the day the overtime was worked. Since 14 February 2006 he worked overtime beyond ordinary ceasing times on 6, 8 and 10 March 2006. Mr Kerry Trenaman, Production Manager, presented evidence on behalf of the respondent. In relation to the application the salient aspects of his evidence included:  Following the decision of the AIRC, an instruction was given to payroll on 14 January 2006 that the allowance was only to be paid when the employee was required to work overtime without pre-notification.  On review of the Award provision covering the maintenance employees, it was considered that the intent of the clause was the same as that which was subject to the decision of the AIRC.  Mr Trenaman accepted that clause 3.12 of the Agreement refers to payment of the allowance once one and a-half hours of actual overtime has been worked (Exhibit KT2).  In negotiating the Agreement with the AMEPKU specific provision was negotiated to address unplanned breakdowns and eliminate unsubstantiated claims which had been a regular occurrence within the plant and was the subject of a number of disputed claims.  The employees received payment of double time from the commencement of overtime to overcome the taking of a meal break after one and a-half hours overtime.  The respondent on review does not consider the provision contained in the Agreement was intended to replace clause 6.8 - Meal Allowance of the Award and the Award continues to underpin the Agreement in respect of this provision.  In discussions with other members of management, it was agreed that the respondent would adopt an interpretation consistent with the decision of the AIRC for all employees. The respondent had no intention of withholding payment where there is a genuine entitlement. -- 1 of 2 -- 2 The key focus of Mr Allery's role is to manage a defined range of assets which includes planning and executing maintenances (Exhibit KT3). The majority of overtime worked by Mr Allery was in accordance with a pre-determined schedule. In evidence, Mr Trenaman considered that the respondent acted consistently in the application of payment of meal allowance where a genuine entitlement existed. Ms Allen submitted it was the opinion of the AMEPKU that in accordance with clause 3.12, employees are entitled to meal allowance once one and a-half hours of overtime has been completed. Further, she strongly objected to any suggestions from the respondent that the entitlement to meal allowance in respect of mechanical and electrical employees relates to the issue of notification. Ms Allen submitted that the words contained in clause 3.12 of the Agreement must be read as a whole and in context. She outlined that the natural and ordinary meaning of the words must be the determining factor in answering the question of whether Mr Allery is entitled to the meal allowance. In looking at the ordinary and plain meaning of the clause and specifically the sentence which starts with "in conjunction with this change", the plain and ordinary meaning is clear: the entitlement to meal allowance for relevant employees created through the new arrangements for overtime as set out in this clause. An entitlement is enlivened once an employee simply works more than one and a-half hours overtime. The issue of notification of overtime for the purposes of this matter is irrelevant. In response, Mr Knight outlined that the respondent through the evidence of Mr Trenaman has clearly detailed that whilst he will acknowledge that clause 3.12 is to cover part of an overtime arrangement it was never intended, to the best of his knowledge, to replace all aspects of the Award, specifically that relating to clause 6.8. He accepted that clause 3.12 certainly creates grey matter but the respondent believes it has acted consistently. In continuing, he outlined that clause 3.12 of the Agreement refers to the payment of a meal allowance in conjunction with the application of overtime payment. In referring to the evidence of Mr Trenaman he indicated that when the Agreement was negotiated it was not intended that the provision replace the Award provision in total, especially that relating to meal allowance. The Commission has considered and reviewed all the evidence and submissions as the Award contains a clear and concise provision in relation to notice of intention to work. The Agreement outlines in a generality the pre-requisites for the payment of an allowance. It is therefore necessary to consider the provisions of the Award. As such the Award provision is specific as it states: "6.8.3 When employees have provided themselves with customary meals because of receipt of notice of intention to work overtime the employee shall be entitled to an allowance of $9.60 for each meal so provided in the event of the work not being performed, or ceasing before the respective meal times.". In view of the Award provision the application is refused. K.L. EDWARDS, Commissioner. Hearing Details: 2006 30 August Released: 31 October 2006 Appearances: Ms K. Allen on behalf of the applicant. Mr P. Knight of Queensland Road Transport Association, Industrial Union of Employers and with him Ms J .Wall and Mr K. Trenaman on behalf of the respondent. Government Printer, Queensland The State of Queensland 2006. -- 2 of 2 --