Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Patlaw Securites Pty Ltd [2001] QIRC 47 (2001) 166 QGIG 404

404 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 April, 2001 S:\QIRCDEV-BASE\QGIG\2001\166\NO.15 12.04.01.DOC ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – recovery of wages Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Patlaw Securites Pty Ltd (No. W185 of 2000) COMMISSIONER BECHLY 3 April 2001 Application for recovery of wages – Security Industry (Contractors) Award – State – Interpretation – Casual Operator/Searcher – Split shift – Whether two engagements or one – Whether party estopped from denying advice previously tendered – Application unsuccessful. DECISION The Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (ALHMWU) has filed an application for recovery of wages on behalf of Ms Sandra ARCHAY against Patlaw Securities Pty Ltd for work performed between 9 December 1997 and 19 April 2000. An affidavit filed identifies the person on whose behalf the application is filed as Ms Sandra AHCHAY. This deficiency in the application can be remedied by allowing an appropriate amendment to overcome the slip. Ms Ahchay was employed as a casual “Operator/Searcher” by the respondent from 1994, with one break in employment, and dismissed on 20 April 2000. Her duties included screening passengers and personal luggage carried onto aircraft at Rockhampton Airport. For the period of time subject to the claim Ms Ahchay was paid on a “flight fee” basis, that is paid a fixed amount for each flight during her period of duty, rather than the basis of payment required under the appropriate Award, this being the Security Industry (Contractors) Award – State. The respondent’s evidence is that this arrangement was entered into at the request of employees concerned to simplify roster changes organised by employees to suit their personal convenience. Rosters were established by the employer some months in advance and, from time to time, some employees wished to swap shifts. The payout arising from such shift swaps was complicated by award minimums. It seems that employees arranged repayment to colleagues for such shift swaps but had difficulty in calculating the appropriate payment. The evidence of Mr Patrick Paterson is that employees approached him, unsolicited, in writing seeking the change to payment by flight rather than on a time basis. This occurred on 1 March 1996 (Exhibit 3). Ms Ahchay is a signatory to the request, along with other security personnel. The request was organised by Ms Ahchay’s sister who was the respondent’s supervisor responsible for the airport screening activities. While I accept the reasoning given by Mr Paterson for the introduction of the change as being the likely reason, I do not accept his evidence that he knew nothing about the request until he received the letter of 1 March 1996. The evidence of Mr Paul Watkins, who was a director at the relevant time and responsible for preparing tenders and determining wage rates indicates that he was requested by Mr Paterson to calculate a rate per flight which would -- 1 of 5 -- 12 April, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 405 meet both the requirements of the Award and the desires of the employees. Further, I do not accept the evidence of Ms Ahchay to the effect that she would have been dismissed if she did not sign the letter requesting the change. It is the respondent’s case that the payments made on the basis of “flight fee” equates to or are greater than the payment which would arise from the application of the Award based on minimum payment periods, or hours worked. The respondent basis this belief on enquiries made of the ALHMWU (previously the Miscellaneous Workers Union of Australia, Queensland Branch) sometime prior to 1994, at the time that the tender to provide security services at the airport was first submitted, and on enquiries also made of the regional industrial inspectorate. Mr Paterson was then a member of the Union. Both he and Mr Watkins sought advice as to the correct payment to be made for the provision of a security service at the airport for certain hours in the morning and, after a break, certain hours in the afternoon. Their evidence is that the local Organiser, Mr Barry Trotter, in consultation with a Mr Slowgrove in the Brisbane office of the Union, advised that employment based on the above hours would be regarded as one engagement with only one minimum payment of four hours required for morning work and payment for the actual hours worked in the afternoon (2 hours). Their evidence also is that the Union did not advise of any requirement to pay a “broken shift” allowance then contained in the Award. An affidavit tendered from the District Industrial Inspector at Rockhampton supports the evidence of Messrs Paterson and Watkins that they were advised by the Inspectorate that only one minimum payment was required daily, and that that was the advice routinely given by the Inspectorate for work performed under similar conditions under other Awards, unless the Award clearly provided otherwise. There have been some changes to the Award since the above advice was given to the respondent. Apart from general wage increases, the work performed by “Operator/Searchers” using hand held scanners, walk through metal detectors and simple closed circuit television scanners was upgraded from Level 1 to Level 2 in 1998 and a definition of a “broken shift” was also inserted at that time in clause 3.5(6) which, until that time dealt specifically with Operator/Searchers and an allowance for working broken shifts. Specific provision was made for casual employees working broken shifts to receive this allowance. The applicant has faced some difficulty in calculating amounts alleged to be underpaid because the respondent has failed to produce appropriate wage records, time sheets, etc. It is claimed that these have been mislaid. However, roster sheets for the period in question have been provided from which various calculations have been made. The roster sheets in many cases are not easily readable. The respondent objects to the various methods of assessment utilised by the applicant in calculating alleged underpayments. These objections are dealt with below. Minimum Period of Engagement and Broken Shifts The applicant has claimed that a minimum period of four hours should be paid for each separate occasion that the work is performed on a day. Clause 3.3(2) deals with payment of casual employees in the following terms: “3.3(2) Casual Employees – A casual employee shall be paid per hour of engagement, at the rate of one fortieth of the weekly rate, prescribed for the appropriate classification plus 19% to be calculated to the next highest cent wherever a fraction of a cent results: Provided that a casual employee shall be paid for each engagement, as for a minimum of hour hours work – where the period of engagement does not exceed four hours. Where the period of engagement exceeds four hours, but is less than eight hours, the specified hours of work shall be paid at ordinary rates. Any additional hours worked to that specified shall be paid at overtime rates.”. The applicant frequently worked at Rockhampton airport on two occasions on a single day. The morning period approximated four hours and the afternoon period two hours. If she worked less than four hours in the morning she was originally paid a minimum of four hours. In the afternoon she was paid for hours actually worked. The applicant relies on the second clause of 3.3(2) for the claim that two minimum payments are required to be paid on any day where a casual works two broken periods of less than four hours each week on one day, arguing that each period of work is a separate engagement. This view runs counter to the advice provided by the Inspectorate and counter to that said to have been provided by the ALHMWU when the contract was first tendered for. I was advised during the hearing that this Award was made in 1991, largely by consent, and was an amalgam of matters contained in the then existing Miscellaneous Workers Award – State, Security Services (Contractors) Award – Metropolitan Security Services, Wormold International Security and TNT Group 4 Security – State, the Airport Security Personnel Industrial Agreement appended to the preceding Award, the Mobile Watchmen’s Award – State and the Contract Security (Superannuation) Award – State. One of the purposes of making the new award in 1991 was to bring all security activities under one Award. The new Award removed from the Miscellaneous Workers Award certain classifications and conditions of employment for security personnel and merged them with the provisions of the Security Services (Contractors) Award, Mobile Watchmen’s Award – State and the Contract Security (Superannuation) Award – State and purportedly assimilated the terms of the Airport Security Personnel Industrial Agreement. The new Award contains ambiguous and contradictory terms. I have had recourse to the reasons for the decision on the making of the new Award to endeavour to assist me to understand the basis of the claims now put to me. Mr J. Slowgrove with Mr D. Brown represented the Union on that matter. Mr J. Martin, who now represents the ALHMWU, represented the then Queensland Confederation of Industry Limited Union of Employers in the matter then before Dempsey, C. The making of an award to cover the whole of the industry was a matter of consent between the parties. A few matters were arbitrated. Dempsey, C notes in his decision the statement of Mr Slowgrove made during the hearing that– -- 2 of 5 -- 406 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 April, 2001 “There are differing provisions in relation to penalties, there are differing penalties in relation to minimum periods of employment, there are differing provisions in relation to the employment of mobile watchmen, and the situation at airports is such that if split shifts are requested, only the major companies can tender at rates that are competitive. It is the intention of the application before you today to incorporate in relation to the airports those provisions into a new Contractors Award and hence allow all contractors to tender for work not only at airports but at all locations which require security services, on an equal basis.”. During the proceedings before Dempsey, C Mr Slowgrove also referred to the flexibility introduced in the new Award which removed the minimum eight hour engagement required by the Miscellaneous Workers Award – State for casual watchmen who worked more than four hours in any one engagement. Significantly the Miscellaneous Workers Award – State defined “engagement” as being “the period of twenty four hours from the commencement of the job.”. The Airport Security Personnel Industrial Agreement applicable to Operator/Searchers defined a casual employee as being “an employee who is engaged as such for thirty two hours or less in any one week.”. This definition appears to contemplate that an “engagement” could cover a period of up to thirty- two hours over a period of a week. The Agreement defined a “broken shift” as being a “shift which requires an employee to go to work twice a day.”. It went on to provide that the second period of duty was to commence more than three hours later than the actual finishing time of the first period of duty. The Agreement at clause 4(3)(1) provided an allowance of $6.65 for each broken shift required to be worked and at clause 4(3)(11) required that casuals who had two engagements on any one day should be paid the same allowance. In the transition to the new Award the working of broken shifts by Operator/Searchers was given approval at clause 4.1(6) in the Hours of Work, Overtime clause. The wording of the proviso as to the length of break was altered but the intent remained the same. Instead of the proviso stating that the second period of duty must commence more than three hours after the cessation of the first period it was changed to a requirement that the second period of duty “shall commence not less than three hours after the actual finishing time of the second period of duty.”. In the transition to the new Award the allowance associated with working broken shifts then clause 3.5(7) was altered markedly. Instead of being payable for each broken shift as in the Agreement, it became payable “per week for each such shift worked.”. This prescription is not logical or is contradictory. An allowance payable “per week” of course is paid once per week or proportionately less if less than a week is worked while an allowance for each shift would be payable on each occasion a broken shift was worked. Also an inconsistency has arisen with respect to broken shifts. In 1998 the Award was varied to include a definition of “broken shift”. What was clause 3.5(7) became 3.5(6). The words “Operator/Searcher” were removed and a new description was inserted which completely altered the meaning of the period of the break. The new description required that the break be less than three hours in that it required the second period of duty to commence between one and three hours after the actual finishing time of the first period of duty. Notwithstanding this change at clause 3.5 Allowances, clause 4.1(6) under the heading Hours of Work, Overtime was retained which remained restricted to Operator/Searchers and permitted such employees to work broken shifts provided that the second period of duty commenced not less than three hours after the actual finishing time of the first period of duty. Again two apparently contrary clauses. An explanation of course is that by removing the words “Operator/Searchers” from the now clause 3.5(6) and retaining them at 4.1(6) the exigencies of the work of Operator/Searchers was recognised and the recognition of a break of longer than three hours retained for such employees but for other than Operator/Searchers the break was reduced to less than 3 hours (but more than one hour). Where does that leave the matter? At clause 2.1(8) under Terms and Conditions of Employment the Award provides that “At point of engagement an employee shall be notified in writing whether the employment is permanent, part-time or casual”, and earlier at clause 2.1(2) it is provided that “A casual employee shall be engaged for a specific number of hours being not less than four hours for each engagement.”. At clause 2.1A(2) the Award provides that “An employee may be engaged on probation for a period of up to three months duration.”. At clause 3.1(4) the Award provides that “ ‘Casual employee’ means an employee who is engaged as such and is not employed for more than 32 ordinary hours in one week: Provided that during the first week of employment . . .”. There are a variety of occasions that the terms engagement and employment are used in the Award. On occasion engagement is utilised to indicate commencement of employment, on other occasions it is used to denote continuing employment. It is obvious that the role of Operator/Searchers was and still is given special consideration as to the requirement to work split shifts with long breaks between the two periods of work. It is also obvious from a consideration of clause 4.1(6) that Operator/Searchers working a split shift are working through one period of employment on a day with two periods of duty. In the case of Ms Ahchay the periods of the shift are of the order of four hours in the morning, attracting the minimum prescription of four hours followed later by a period of about two hours. The daily periods of duty were rostered well in advance and on a consideration of clause 4.1(6) would be regarded as one shift or one engagement. I agree with the advice given by the Industrial Inspector and by that said to be given by Mr Slowgrove as attested to by Messrs Paterson and Watkins that one minimum payment of four hours is required to be paid in such circumstances. The entitlement or otherwise to the allowance for working a broken shift is somewhat more difficult to determine. Under the terms of the previously existing Industrial Agreement I hold the view that the allowance would have been payable in the circumstances outlined above. The Industrial Agreement effectively provided that permanent employees working a split shift as defined are entitled to an allowance and casual employees performing two periods of duty equivalent to a split shift receive the same allowance. The transition to the new Award in 1991, where an allowance per week payable for each shift was prescribed, gives rise to uncertainty as to how the allowance should be applied. I hold the view that the inclusion of the words “per week” was a slip. The reasons for prescription of such an allowance are all to do with each occasion such work is performed. The entitlement to the allowance for casual employees would continue under the new Award at least until 1998 when a definition was included which could have the appearance of removing the entitlement to the allowance for Operator/Searchers by virtue of the removal of the classification name from the Allowance provision. It may also conflict with some provisions of Part 4 of the Award. -- 3 of 5 -- 12 April, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 407 Whilst that may be an interpretation that could be placed on the current Award provisions it is not the appropriate interpretation. Operator/Searchers, by virtue of the requirements of their functions at airports in some circumstances are required to have a break of more than three hours. There is no reason why, in those circumstances, the previously applicable allowance should cease to be available to them. The entitlement to this allowance supports the finding that a second minimum payment is not required for work performed after the break. Overtime on Deemed Hours Having found that a second minimum payment is not applicable this claim would appear not to be relevant. It should be noted that clause 4.3(1) generally provides that overtime is payable for time worked and, in the case of casuals, in excess of specified hours of work. Rate of Calculation of Overtime The claim made by the applicant seeks double time for overtime based on a proposition that the work performed was carried out in circumstances which would cause the work to be defined as shift work where more than two shifts per day are worked. There is no foundation to this claim. One broken shift, generally of less than eight hours, is worked each day. Public Holiday Penalty Rates The claim seeks the inclusion of the casual loading as part of the base upon which public holiday penalty rates are calculated. This claim was withdrawn during the hearing. There is no award entitlement to that claim. Other Issues The respondent’s evidence is that the Operator/Searchers swapped shifts from time to time to suit their own convenience and that they arranged to reimburse each other for the hours worked. Other evidence is that Ms Ahchay, to suit her own convenience, requested certain shifts. She lived a considerable distance from Rockhampton but had access to accommodation in Rockhampton for overnight stays and requested working hours to minimise early starts from her home to get to the airport to deal with the first flights of the day which required her to leave home at around 4.30am. The Award at clause 4.2(4) provides for these arrangements in the following terms: “Employees may swap shifts by agreement with no penalty to the employer, subject to the approval of the employer.”. The most economic method of providing the service required of Operator/Searchers would be that requiring the payment of only one minimum payment each day to each person. The morning activities were the longest and attracted the minimum payment. It appears that on occasion Ms Ahchay sought to work afternoon hours followed by morning hours. This, of course, would seem to require a mutual change of hours with another employee. No evidence has been provided by employees other than Ms Ahchay, but she acknowledges the arrangements made to suit her own preferences. It seems to me that clause 4.2(4) was inserted into the Award to accommodate such arrangements. If this aspect of the matter is contested further I would require to hear additional evidence to explore the practices of employees with respect to shift swaps. All the preceding matters should be taken into account in reassessing, during the period of the claim, whether Ms Ahchay has been underpaid. Estoppel The respondent argues that the applicant may not rely on its interpretation of the Award because the Union is estopped from denying the effect of the advice said to have been tendered by it to the respondent regarding pay rates and conditions (more particularly regarding calculation for hours for which payment had to be made by the respondent to meet the requirements of the service contract at the airport). The respondent argues that it relied on such advice in structuring its tender, and subsequently in discharging its obligation under the contract which ensued, that it did so to its detriment, and that it would be unconscionable for the Union to resile from the advice so given. Corroboration of the giving of such advice is said to be given by the Union’s correspondence of 4 September 1995 to the respondent, acknowledging that the respondent’s employees were being paid correctly. Having come to the conclusion that one minimum payment accrues each day to an individual in the above described circumstances there is little merit in considering further the respondent’s contentions regarding estoppel. The evidence in this matter was directed to what hours had to be paid for under the terms of the contract, not to the rates of pay or allowances including the split shift allowance, although the respondent states that no mention was made as to a requirement to pay this allowance. The fact that no mention was made would not give grounds for estoppel, more so when one considers the respondent’s evidence that the thrust of its enquiry to the Union was hours to be paid for to service the contract. In any event the respondent later moved from the original arrangement when it commenced to pay on a per flight basis rather than on the basis of minimum hours as required by the Award. -- 4 of 5 -- 408 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 April, 2001 Conclusions The ALHMWU is directed to re-calculate the entitlements claimed on behalf of Ms Ahchay and to provide details of such calculations to the respondent and to the Commission. To facilitate these calculations the respondent is directed to provide to the ALHMWU legible copies of any rosters and time and wage records required to be retained by it. The matter will be re-listed should further evidence be required with respect to the operation of clause 4.2(4) or should other issues arise which either party seek to put before the Commission. If it becomes apparent that there is a discrepancy between payments made and award entitlements the matter will be re-listed to determine if orders should be made. R.E. BECHLY, Commissioner. Released: 4 April 2001 Appearances:– Mr J. Martin of Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees, for the Applicant. Mr C. Moseling, Clerk employed by Rees R & Sydney Jones, Solicitors, for the Respondent. -- 5 of 5 --