Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Queensland Health [1994] QIRC 175 (1994) 145 QGIG 935

,. 934 QUEENSLAND GOVERNMENT .INDUSTRIAL GAZETTE [29 April, 1994 29 April, 1994) QUEENSLAND GOVERNMENT .INDUSTRIAL GAZETTE 935 #################################################### QU EENSLA ND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1990 s. 131 - application for interpretati on Austral ian Liquor, Hospitality and M iscellaneous Workers Union, Qu eens land Branch, Union of Employees AND Queensl an d Health (No. 875 of 1994) REGIONAL HEAL TH AUTHORITIES EMPLOYEES' AWARD - STATE COMMISSIONER BLOOMFIELD 18 Apri l 1994 Interpretat ion - Recall to duty - Call Back - On Ca ll - Emp loyee still on employer 's premises when reca lled to duty - Whether continuous period of work - Commission determin ed th at employee had c eased work - Whether still on employer's prem ises irrelevant - Employee Recalled - Mi nimum period of two ho urs overtime should be paid. -- 1 of 2 -- 938 QUEENSLAND GOVERNM ENT INDUSTRIAL GAZ ETTE [29 April. 1994 (se e Public Service Award - State - ln terpre1ation - 14 5 QGIG 7 21) (Note: Thi s deci sion h as since been appealed). It i s from that decision tha t the Conci se Oxfo rd D ictionarv definition is drawn. · !n h is deci sion Commi ss ioner Bougoure indi ca ted that in the absence of a specific provision limiting l he words he could see no valid reaso n to place a res tricted meaning on them: "A s I have earli er indicated 1hese words may mean a summons to come back; for revocation; or annulment of an action or decision". (p. 722). I agree wi th the app ro ach adopted by Mr Commi ss ioner Bougoure. There is nothing in the Regional Health Authority Employees' Award - State wh ich cou ld cause the Comm is sio n to read down the word "reca lled". M r Drummond clearly had ceased his dut ies for t he evening an d was engaging in conversation when he was su mmoned to come back to work. There is no re quirement in the su bcla u se th at he need h ave left the employer's premi ses before he became en titl ed to 1he "recall'' provisions of the overtime clause. Alt hough 1h e employer, in i ts su bm iss ion s, suggested that the rec all prov ision should only apply in circumstances where the employee returned fr om his home or some external place, th ere is no thi ng in the Awa rd whic h requ i res this. Fu rther, there is no lhi ng in th e dictio nary definitions of "recall" which would requ ire that th is be a precondi tion as the definit ions qu i te clearly show that a · reca l l" can occur in a variety of ways - including "to call or bring back to . . . a certa in . occupa tion" and "10 bring b ac k ... by cal ling upo n . .. ". Accordingly, I have no hes it at ion in fi nd ing th at: - • Mr Drummond w as nor on cal l. • Mr Drummond was recalled to perform wo rk. • Mr D ru mmond was reca ll ed after com ple ting ordin ary duty. • Mr D ru mmond is en till ed to be pa id at the appropria te overti me rat es for a mi ni mum of two (2) hours from 12. 10 a. m. on 10 June 1993. It may be tha1 one, or both, of the par ti es in these proceedi ng s d ec ides to review t he wording of clause 4.9 - "Overtime" in light of this decision. If that is so the Commission recommends 1hal 1h ey might al so give considera1ion to a revi ew of the potential for link age betw een subclau ses 4.9(6) and 4.9(8 ), res pectivel y. It m ight have been in t he circumstances of th is case that Mr Drummond did contin ue to work ma rgi nall y beyond 12. 00 midnight. Even had he done so he wou ld have only been paid un 1i l 12 .00 p.m. beca use of th e opera tion of subclause 4.9(8 ). Had he worked until 12 .07 p .rn. and 30 seconds he wou ld have been entitled 10 be pa i d un1 il 12 . 15 a.m. This was not the case prese n te d to t he Commi ss ion. Had Mr Drummond been in the !alter circu ms tance th ere could have been some argument that, as he was st ill being pa id, the employer coul d lawfully direct him to pe rform pa rticu l ar dut ies. Un doubtedly, w ch a proposi tio n wou ld have been countered by t he argum en t that the employee ha d nonethel ess fin ished duly prior to being re ca ll ed to perfo rm such ad di ti onal wo rk and !hat it was because of an awa rd provisio n that he was act ually paid beyond his actual ceasing time. However, the Commission was not as k ed to interpret !his l at ler poss ib ili ty. Even had I been I 1hink that the fou r (4) elemenls contained within subdause 4 .9(6} revea l 1he answer. In ci ting with approval the decision of O 'Mara J. in AWU v E.A. Abbey and Others 40 CAR 4 94 at 495 Mr Commissioner Bougoure in Re: Po lice Service Award - State at p. 722 sa id "If the Award, upon its proper c on suuction, is unjust o r results in undue difficuhy ... then the proper method of remedying 1he matter is to apply for a va riation of the Award." . Th e parties to these proceedi ng s may do well to consi de r suc h a course of action - hopefu lly by con se n t. ! order accordingly. AL. BLOOM FI ELD, Commissioner. Appearances:- Mr J. Sp ri gg s for t he Australian Liquor, Hospi ta li ty and Miscell aneous Wo rkers Unio n, Queensland Branch, Union of Employees. Ms M. McGini ty, wit h her Mr G. O ' Brien, Ms L. Childs and Ms T. Snowdon, for the D irector-General of Health an d 1he various Regional Health Authorities. O pera tive Date: N//\ Interpretation - Recall to dut y Released: 18 Ap ril 199 4 #################################################### 29 Apri l, 1994] QUEENSLAND G OVERNM ENT INDUSTRIAL GAZETTE 939 -- 2 of 2 --