Australian Sugar Milling Association, Queensland, Union of Employers and South Johnstone Mill Limited v The Australian Workers' Union of Employees, Queensland [1994] QIRC 487 (1994) 147 QGIG 410

410 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [23 September, 1994 ####################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION industrial Relations Act 1990 s. 3 I 9 - notification of dispute Australian Sugar Milling Association, Queensland, Union of Employers and South Johnstone Mill Limited AND The Australian Workers' Union of Employees. Queensland (No D408 of 1994) SUGAR INDUSTRY AWARD-STATE COMMISSIONER BLOOMFIELD 8 September 1994 Dispute - Arbitrated Matter - Payment for Watching Duties During Non-Crushing Season - Employees have not been underpaid for week-end work. DECISION When this matter first came before the Commission on 22 June 1994 the Commission was informed that it was one with quite a deal of history. It was made plain that employees who had been engaged on watching duties during the non-crushing season were claiming that they had been wrongfully paid by the South Johnstone Mill Limited in respect of week-end work for some considerable period of time. The Commission was also informed that the parties had been unable to resolve the issue between them despite quite considerable discussions. As a result, the Commission deemed it appropriate to deal with the matter pursuant to section 319( 4) by arbitrating the issue in dispute. To this end, arrangements were made for the Commission to visit South Johnstone Mill Limited, to take evidence from the employees who were making the claim about v.rnngful payment, to take evidence from the employer on the same issues and to conduct a physical inspection of the work which had been performed by the employees concerned. It is worthwhile to note that the dispute about \\TOngful payment arose only after the employer decided to replace its ow11 workforce, which had been engaged on watching duties. with a combination of new fences. electronic aides and contract watchmen. The Commission visited South Johnstone on I 3 July 1994 and was able lo receive interim submissions from Mr Low and Mr Baillie. both officials of The Australian Workers' Union of Employees. Queensland (the A WU). and evidence from several employees who had been engaged as watchmen in the past, namely Messrs O'Brien, Gant and Douglas. The Commission was also able to hear interim submissions from Mr P. Warren for the Australian Sugar Milling Association, Queensland. Union of Employers (ASMA) and to take evidence from Messrs Stevenson and Horwood. as well as Ms L. Foschi. all of South Johnstone Mill Limited. The Commission was appraised of the items in dispute and was informed in quite some detail by the employees and management of the types of tasks undertaken by employees when they had been engaged on watching duties in the non-crushing season both on a week day and over the week-end. After this material was presented to it the Commission was taken on a typical round of the Mill which would have been performed by a watchman, show11 the various items which were physically checked by the watchman, and shoWTI key clocks which were turned to confirm that the watchman had visited a particular area. From the material presented to it and from this inspection, the Commission was able to ascertain that approximately 75% of any one shift would be spent on watching duties with the remaining 25% of the time of each shift involving the performance of a range of other duties which were typically written up either as a standard set of tasks to be performed during a particular shift, or specifically written up by the shift engineer or a supervisor. From the evidence presented it was apparent that the vast range of such additional duties undertaken would have been typical of those performed by a general mill worker at South Johnstone Mill Limited. It appears that the employees are claiming that because they performed such additional tasks on a week-end that they have been incorrectly paid for week-end work during the non-crushing season. Although not clearly spelt out during the course of the visit on 13 July, nor during the submissions which were presented by Mr Low on 15 July, it appears that the claim centres around a belief that overtime payments should be payable in respect of the performance of these additional duties on the week-end. Certainly, the employer - through Mr Warren of ASMA - has treated the issue as if the claim was being made in this form. As such, it is convenient for me to also treat that as the claim which I have indicated that I will decide. In October I 972 the Miscellaneous Workers' Award - State was varied by decision of Self C. (8 l QGIG 433) to include an additional duties payment of $2 per week to be made to watchmen who were "required by their employer to perform duties totally unrelated to the function of watching, safeguarding or protecting premises ... ". At that time the Miscellaneous Workers' Award - State applied to watchmen who might be employed by sugar mills. In early 1973 a Full Bench of the Industrial Conciliation and Arbitration Commission of Queensland (83 QGIG 9) varied the Sugar Industry Award- State to include a classification of watchman as a consequence of an application by the Australian Workers' Union. The application had been consented to by the employers concerned and involved the inclusion into the Award of new definitions as well as a new subclause in the Hours Clause. The definition of"watchman'' was inserted into the Award in the following terms:- '' 'Watchman' shall mean an employee of a sugar mill who is primarily engaged in safeguarding sugarmill premises or property on or about such premises, and who may be required, during the course of his watchman's duties, to carry out other general duties associated with the operation ofa sugar mill.''. The variation to the Hours of Work Clause was in the following terms:- "(5)(a) The ordinary working hours of watchmen (other than casual watchmen) shall not exceed forty per week or eight per day to be worked on any five days of the week. The daily ordinary working hours shall be worked continuously. Shift work may be worked in accordance with a roster as agreed upon between the employer and the employees concerned. 23 September, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 411 (b) Casual watchmen may be employed at any time during the seven days of the week, with a minimum of four hours per engagement where the engagement does not exceed four hours and a minimum of eight hours for engagements exceeding four hours. All time worked by casual watchmen in excess of eight hours on any one day shall be paid for at overtime rates: Provided that for the purposes of this provision ·day' shall mean the period of twenty-four hours from the commencement of each engagement. The allowance prescribed by subclause (14) of clause 30 shall not apply to casual watchmen.". The allowance mentioned at subclause ( 14) of clause 30 was in the following terms:- "( 14) Extra Payments for Afternoon and Night Shifts - All afternoon and night shift workers shall be paid $1 per shift in addition to the rates prescribed herein.". The wage rate for '·watchman'' was 169.308c per hour in the Northern District. This was identical to the rate applicable at that time to a general mill worker over 21 years of age. From a search of the history file within the Commission it is evident that the rates payable from time to time for ''watchman" and "general mill worker over 21 years of age" have been identical at each consolidation of the Award, and the position remains unchanged following the major broad banding exercise which occurred in the Award in 1992 ( 141 QGIG 893 - 900). During the course of the proceedings before the Full Bench in 1973 Mr J. Leeman, who appeared for the Australian Sugar Producers' Association Limited, made reference to the decision of Self C - and the variation to the Miscellaneous Workers' Award - State - as follows:- ·'The Commission will be aware that last year the Miscellaneous Workers' Award was varied to provide an allowance. an additional payment. of $2 per week where employees do what I paraphrase as ·other duties' during their work as watchmen. The definition of watchman as I see it has been designed lo ensure that the high wage rates that might now be paid to our watchmen will cover all the duties that they perform, including these 'other duties'. These other duties would cover such things as watching water levels, opening and closing of switches, opening and closing of clocks and valves on different equipment. This has been the normal practice in the industry for many years. I would not like to think that in a vear's time somebodv on my right might come back to this ·commission claiming an allowance of $2 per week on top of wage rates that are in this document here. The principle as we see it is the intention to ensure that the practices in the industl) that have gone on for many years will continue ... ". (from transcript matter B701 of 1972). From the foregoing, the following matters are relevant to this case:- ·'Watchmen•· are employees who are primarily engaged m safeguarding sugarmill premises or property . Watchmen may be required during the course of their watchman's duties to carry out other general duties associated with the operation of a sugarmill. Watchmen may perform their ordinary work on any day of the week Monday to Sunday inclusive. Apart from payments for working afternoon or night shift there are no additional allowances paid to watchmen. Notwithstanding the definition of "watchman" - which has been in the Award since 1973 - arising out of the decision in the State Wage Case of October 1989, and in consideration of the wage increases resulting from the first structural efficiency adjustment operative from 30 November 1989, employees covered by the Sugar Industry Award - State are to be available to perform a wider range of duties including work which is incidental or peripheral to their main task or functions (clause 26B(I)). The shifts which have been worked at South Johnstone Sugar Mill Limited have been worked in accordance with a roster as agreed upon between the employer and the employees concerned. There is no provision for general mill workers to work their ordinary hours during the non-crushing season on any day other than Monday to Friday inclusive. Any work performed by a general mill worker on the week-end would be overtime work. Notwithstanding the definition of watchman and the inclusion of the Wider Range of Duties clause (26B(J)) in 1989 the A ward still contains a "Two or More Classes of Work" clause (26(14)(q)) which provides that where an employee performs two or more classes of work to which a differential rare fixed by any award is applicable such person, if employed for four hours or less on the class or classes of work which carry a higher rate, shall be paid for such highest rate for four hours. In this case, although different work is performed, there is no higher rate applicable as the rate prescribed by the A ward for general mill workers is identical to that of watchmen. After considering all of the evidence taken in respect of this matter as to the work performed by watchmen on week-end watching duties during the slack season at South Johnstone Mill Limited and being appraised of the nature of the actual duties undertaken I have come to the conclusion that the employees have not been underpaid in respect of the work which they have performed whilst engaged on week-end work. I have come to this conclusion for a number of reasons as follows:- The watchmen at South Johnstone Mill Limited have been ·'primarily engaged'' on watching duties in that it has comprised 75% of the duties performed by them on a week-end during the non-crushing season. The duties which were performed outside of what could be regarded specifically as "watching" duties fall within the term ·'general duties associated with the operation of a sugarmill". There 1s no penalty rate applicable to watchmen who might perform their duties on a week-end as the Award contemplates that each day is treated equally. The actual shifts which have been worked have been worked by agreement between the employees and the employer. C -- 1 of 2 -- 412 QUEENS LAN D GOVERNMEN T INDUS TRIAL GAZETTE [23 Septe mber, 1994 The employees were working ordinary time on a week- end, not overtime, and the fact that general mill workers working overtime on a week-end wou ld have been entitled to a differem rate is immaterial. Their engagement was as a "watchman ", not general mi ll worker. The "Two or More Classes of Work" clause has application to wage rates only, not to pena ll y rates which might be payable for working at particular times. Since 1989 emp loyees co vered by t he Sugar Industry Award - State - including watchmen - are to be available to perform a wider range of duties including work which is incidental or peripheral to their main task or functions. The tasks or functions exercised in addition to the "watching d uties " fall both wi thin this Wider Range of Duties clause illJQ the defi nition of watchmen in the Award wh ich is stated to inc lude an employee "who may be required during the course of his watchman's duties, to carry out other general duties associated with the operation of a sugar mill" . In conclud ing, the Comm ission indicates to the watchmen at South Johnstone Mill Limited that their case has received a full and complete airing and a very strenuous exan1ination and consideration by myself. It has been found wanting as the Award simply does not support the claim advanced. In such circumstances the matter should now be considered as dead. A.L BLOOMFIELD, Commissioner Appearances:- Mr P. Warren for the Australian Sugar Mill ing Association, Queensland, Union of Employers for South Johnstone Mill Limited. Mr G. Low for The Australian Workers' Union of Employees, Queensland. Operative Date: NIA Decision - Paymem for Watching Duties During Non-Crushing Season Released: 8 September 1994 ####################################################### 23 September, 1994] QU EENS L AN D G OVE RNME NT INDUSTRI AL GAZETTE 41 3 -- 2 of 2 --