Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland v Inghams Enterprises Pty Limited [2001] QIRC 61 (2001) 167 QGIG 41

11 May, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 41 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – unpaid wages Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland AND Inghams Enterprises Pty Limited (No. W28 of 2001) COMMISSIONER BLOOMFIELD 3 May 2001 Unpaid wages – Overtime – Penalty rates – Calculation of payment for work commencing prior to ordinary starting time – Provisions of Engineering Award – State – Arbitrated Matter – Employee was informed of change of ordinary starting time – Application dismissed. DECISION The Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (the Union) has applied to the Commission for an order directing Inghams Enterprises Pty Limited (the Respondent) to pay Trevor Jones the sum of $6,1030.20 together with interest. The Union alleges that Mr Jones was directed to commence work prior to his alleged ordinary starting time of 7.00 a.m. on a regular basis in the period 16 February 1995 until 28 June 1999 and that he was not paid the appropriate penalty rate for such work in accordance with the provisions of the Engineering Award – State. Clause 4.4(2)(d) of the Award provides as follows:– “4.4(2)(d) Where employees are required to report for work between midnight and 6.00 a.m. they shall be paid at the rate of double time for all overtime so worked up to the ordinary starting time Monday to Friday and up to 7.00 a.m. on Saturday.”. Evidence was led by the Union from Mr Jones and also from his Leading Hand Mr Thomas Hamilton. Mr Jones said that he had received a payout in approximately December 1994 which represented overtime payments at the rate of double time for work which he had performed between 5.30 a.m. and 6.00 a.m. over the previous several years. He said that from that time until mid-June 1999 he was not advised either verbally or in writing that his ordinary starting time would be changed from 7.00 a.m. to 6.00 a.m. Further, he said that from December 1994 onwards the hour between 6.00 a.m. and 7.00 a.m. continued to be paid at time and a-half rates. Mr Hamilton also referred to the December 1994 payout. In addition, he said that he had been instructed in late 1994 or early 1995 – he could not remember by whom – to mark the clock cards so that Mr Jones would be paid at one and a-half times the ordinary rate for work performed between 6.00 a.m. and 7.00 a.m. -- 1 of 2 -- 42 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 May, 2001 The respondent called evidence from Mr Brian Craft who had been the engineer responsible for maintenance in all Inghams sites in Queensland in the period between 1984 and late 1998. It also called evidence from Ms Jeanette Maguire (nee Bryant), the company’s payroll officer. Mr Craft said that during 1994 an issue arose regarding the payment of overtime for early starts for Mr Jones and Mr Hamilton. Each of the employees had been paid at the rate of time and one-half for work performed prior to 6.00 a.m. rather than double time. Arrangements had been made through a memorandum dated 15 December 1994 to backpay Mr Jones for a period of three years and for a period of one year in the case of Mr Hamilton. Mr Craft said that as a result of the investigation which took place at this time he knew that 6.00 a.m. was the earliest time that he could specify as Mr Jones’ ordinary commencing time. He said that he had verbally advised Mr Jones that his official starting time for ordinary hours would be 6.00 a.m. Several days after he issued the 15 December 1994 memorandum authorising backpay the payroll officer, Ms Maguire, approached him to seek confirmation that Mr Jones had been advised that 6.00 a.m. was to be his starting time as she did not wish to have another backpay claim. Mr Craft said that he confirmed to her that he had spoken to Mr Jones about the change in his ordinary starting time. Ms Maguire wrote a short note to this effect for Mr Jones’ personnel file and he initialled it. Ms Maguire gave evidence that she approached Mr Craft soon after she received his 15 December 1994 memorandum to confirm that Mr Jones knew that he was now on a 6.00 a.m. start. Mr Craft responded that he had told Mr Jones about the change. Ms Maguire said that to make sure that the change was recorded she took a yellow post-it note from Mr Craft’s desk and wrote on it “TREVOR JONES OFFICIAL START TIME 6 AM”. She signed the note and Mr Craft initialled it. The note, attached to the original 15 December 1994 memorandum, was produced into evidence. Conclusion After considering the verbal and written evidence produced to the Commission I have reached the conclusion, on the balance of probabilities, that Mr Jones was informed in or around December 1994 that his formal starting time for working ordinary hours would be 6.00 a.m. I have reached that conclusion for a number of reasons. Firstly, there had been a dispute about overtime payments and calculations were undertaken to ensure that each of Mr Jones and Mr Hamilton was paid at the rate of double time for all work performed prior to 6.00 a.m. in accordance with the initial provisions of clause 4.4(2)(d). Having regard to the fact that the company had made a payout going back three years in the case of Mr Jones I find it extremely unlikely that the company would not have taken the necessary action to obviate any future claims for underpayment of wages by informing him of his official starting time for ordinary hours purposes. Secondly, Mr Craft’s unchallenged evidence was that during the second half of 1994 negotiations were underway regarding an enterprise agreement to cover Inghams maintenance employees. One of the issues was the ability to stagger commencing times of ordinary hours and for there to be fairly early starting hours in the case of some employees. The company was aware that it had to pay double time up to the ordinary starting time where an employee was required to report for work between midnight and 6.00 a.m. Given that Mr Jones was asked to start work at 5.30 a.m. it is very unlikely that the company would not have changed the ordinary starting time from 7.00 a.m. to 6.00 a.m. – to reduce its penalty payment obligations – when the Award clearly permitted that to happen. Thirdly, it was Ms Maguire’s unchallenged evidence that she spoke to Mr Craft at the relevant time about whether or not he had informed Mr Jones that the official starting time for ordinary hours would be 6.00 a.m. Given that he had recently authorised the payment of backpay for incorrectly applying the Award it is unlikely that Mr Craft would have told her that he had spoken to Mr Jones about a change in the starting time if he had not actually done so. The contemporaneously produced note confirms that the discussion between Mr Craft and Ms Maguire occurred as suggested. Fourthly, Mr Jones stated under cross-examination that Mr Craft mentioned to him in late 1994 or early 1995 that he could alter the starting time to 6.00 a.m. if he chose to do so. I think it unlikely that Mr Craft would have mentioned a change in starting time in this context. The more likely scenario is that he actually informed Mr Jones of that change rather than informing him that he could make the change if he chose to do so. Fifthly, Mr Jones had knowledge from 1994 that the Award required payment at the rate of double time for work performed prior to the normal starting time if he commenced work between midnight and 6.00 a.m. If he genuinely believed that his ordinary starting time was 7.00 a.m. he would surely have made a claim for the payment well before the date that the claim actually came to the fore. In this regard I do not accept his evidence that he believed that he had raised it in 1995 with Mr Craft. If he had I am certain – given the events of 1994 – that it would have been pressed. It was contended by the Union and Mr Jones himself that Mr Jones was on a 7.00 a.m. start because the company continued to pay him at the rate of time and a-half for the hour between 6.00 a.m. and 7.00 a.m. after the backpay calculation was undertaken in 1994. The reasons why that occurred are unclear. Mr Hamilton said that he was instructed to make such a notation on Mr Jones’ paysheets whilst Mr Craft says that he was the only one who could have authorised such an instruction and he never gave one to Mr Hamilton. Be that as it may, the fact that Mr Jones was paid more than single time, as allowed by the Award provision if his starting time had been altered as the company asserts, does not establish that his ordinary starting time remained at 7.00 a.m. For the reasons stated I have determined that Mr Jones was informed in or around December 1994 that his ordinary starting time would be 6.00 a.m. Accordingly, the Union’s claim for underpayment of wages in accordance with clause 4.4(2)(d) of the Engineering Award – State must fail. The application is dismissed. A.L. BLOOMFIELD, Commissioner. Appearances:– Ms H. Patterson and Mr B. Burton for Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland. Mr R. Egan, of Jones Ross, for Inghams Enterprises Pty Limited. Released: 3 May 2001 -- 2 of 2 --