Department of Industrial Relations for Robinson v Austin t/a Woodford Kindergarten and Child Care Centre (No. 2) [2006] QIRC 30 (2006) 181 QGIG 300

[Extract from Queensland Government Industrial Gazette, dated 3 March, 2006, Vol. 181, No. 9, pages 300-301] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 278 - application for unpaid wages Department of Industrial Relations for Stacey Jean Robinson AND Pamela Beatrice Austin t/a Woodford Kindergarten and Child Care Centre (W/2005/169) (No. 2) COMMISSIONER BLADES 21 February 2006 Unpaid wages - Part-time employment - Public holidays not worked - Averaging - Clarification. DECISION By way of a decision in this matter released 31 January 2006, now reported at (2006) 181 QGIG 219, I determined that the rate to be applied for public holidays not worked other than the Christmas/New Year break, be by way of an averaging exercise for that particular day over the preceding 13 weeks. A dispute has now arisen between the parties as to the manner of that calculation. Correspondence dated 13 February 2006 has been addressed to the Commission by the Department and correspondence dated 14 February 2006 has been addressed to the Commission by the Respondent. The parties have advised that they consent to the determination being made on the information contained in that correspondence. The question is whether the days when no work was performed are to be included in the calculation for averaging the number of hours normally worked over the preceding 13 weeks. The Department believes that the calculation should be the hours worked over the period divided by the number of days actually worked. The respondent submits that the calculation should be the hours actually worked divided by the number of days within the 13 week period, i.e. 13. It is submitted that the Department's method of calculation results in the average number of hours worked on a given day, (only) when work was performed, and is therefore not a true average of the 13 week dataset. It is submitted that the method used by the Department provides a skewed average which is considerably higher than the true average for the period. No authorities have been cited. Clause 7.6.5 of the Child Care Industry Award - State 2003 provides that a part-time employee who usually works on a day of the week on which a public holiday falls and is not required to work on that day, will be paid for the hours which would normally have been worked on that day. What is sought to be determined is the average number of hours normally worked on a given day. A 13 week period was chosen as reflecting a fair average. In my view, the average number of hours normally worked on a given day has to be calculated by averaging only those days when work was performed. It makes no sense to include in the average, public holidays when no work was performed and it follows that it makes no sense to include in the average, other days when the worker did not work. Had the worker worked on the day when no work was performed, the hours worked would have been the average work hours for that day which can only be calculated by paying regard only to the days when work actually occurred. In the example given, over the 13 week period, there were 13 Mondays, there was one Monday public holiday and there were 3 Mondays the worker did not work. The Department took the number of hours worked and divided by 9. That was the correct method to adopt to determine the average number of hours which would normally have been worked on that day. Order accordingly. B.J. BLADES, Commissioner. Released: 21 February 2006 Appearances: Mr A. Kent for the Department of Industrial Relations on behalf of Ms S.J. Robinson. Mr B. Holmes, Employer Services Pty Ltd, for Ms P.B. Austin. Government Printer, Queensland The State of Queensland 2006. -- 1 of 1 --