Australian Institute of Marine and Power Engineers’ Union of Employees, Queensland District v Environmental Protection Agency [2004] QIRC 67 (2004) 175 QGIG 1246

1246 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 16 April, 2004 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 230 – application for arbitration Australian Institute of Marine and Power Engineers’ Union of Employees, Queensland District AND Environmental Protection Agency (No. D367 of 2003) COMMISSIONER BROWN 1 April 2004 DECISION Initially, by way of history, the Environmental Protection Agency (EPA) rejected an overtime claim for recall to duty for Mr Richard Orchard. The Australian Institute of Marine and Power Engineers’ Union of Employees, Queensland District (AIMPE) then filed notification of an alleged industrial dispute on 24 September 2003 in relation to the EPA’s rejection of Mr Orchard’s overtime claim for recall to duty. A conference was then held in the Queensland Industrial Relations Commission before Deputy President Bloomfield on 30 September 2003. As a result of that conference, Deputy President Bloomfield, in a memorandum dated 6 October 2003 to Vice President Linnane, asked that the unresolved dispute be arbitrated. Consequently, the Commission, as presently constituted, was asked to determine the following question by arbitration pursuant to s. 230(3)(b) of the Industrial Relations Act 1999: “Is Richard Orchard entitled to be paid a call-out allowance in accordance with clause 6.7 of the Conservation, Parks and Wildlife Employees’ Award – State Government 2003 for the following call-outs: • At 2235 hours on 20 January 2003 • At 2155 hours on 21 January 2003 • At 2200 hours on 22 January 2003 • At 2110 hours on 23 January 2003? ”. -- 1 of 4 -- 16 April, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1247 Mr A. Reid appeared for AIMPE and called evidence form Richard John Orchard and Gary Patrick Selwood. Ms D. Evans represented EPA and called evidence from Lester Meryvn Harth, Manager, Training and Safety. The parties agreed that Mr Orchard was at material times (and still is) an employee of EPA classified as a 005 Ranger and subject to the terms of the Conservation, Parks and Wildlife Award – State Government 2003 (the Award) together with the supplementary arrangements to that Award. Clause 6.7 of the Award states: “6.7Call back 6.7.1 An employee recalled or called out for duty shall be paid for a minimum of 2 hours’ duty at the prevailing rate for each time the employee is so recalled: Provided that except in the case of unforeseen circumstances arising the employee shall not be required to remain on duty for the full 2 hours if the duty the employee was recalled to perform or any associated duty is completed within a shorter period: Provided further where an employee is called out between midnight and 6.00 a.m., the employee shall be paid at the rate of double time. 6.7.2 Clause 6.7 shall not apply where the overtime is continuous (subject to prescribed meal breaks) with the completion or commencement of ordinary working time.”. The question as posed requires some explanation. Firstly, the Award (2003) was not the industrial instrument in force at the times in question, however, clause 6.7 of that Award is in exactly the same terms as the terms contained in the industrial instrument applicable in January 2003. Secondly the Commission has not been influenced by the wording of the question which seems to pre-suppose that the activities performed by Mr Orchard on the dates in question are “call-outs”. Background On the dates in question Mr Orchard was engaged as a marine ranger in possession of a Master class 4 certificate and performing in the role of Master of the MV “Kerra-Lyn” owned and operated by the respondent. The evidence was that Mr Orchard ceased his normal hours of duty at approximately 5.00 p.m. each day. He then performed what has been described as “safety checks” at varying intervals through the night when anchored out away from port overnight. In short, the applicant claims that the performance of the “safety checks” falls within the scope of clause 6.7 (Call Back) and should be paid as such. The EPA for their part maintain that the Anchoring Out Allowance contained in the supplementary arrangements to the Award covers this contingency. Clause 10 of the Supplementary Arrangements to the Award states: “Anchoring Out Allowance 10. Whilst at sea and away from their appointed headquarters overnight, employees shall, in addition to the abovementioned travelling allowance, be paid an anchoring out allowance of $7.92 for each such overnight absence.”. In support of their contention the EPA submitted that they had consistently interpreted the Anchoring Out Allowance as an allowance paid to compensate employees for performing checks during the night. Ms Evans stated that evidence of this was to be found in the Queensland Parks and Wildlife Service Hand Book of 1991 (Ex. 7), as well as in correspondence dated 28 August 2002 to the applicant wherein the respondent stated: “the original intent of the allowance was to compensate the one person who undertook duties associated with anchor and machinery checks during the night while the vessel was at anchor.”. The EPA referred further to the Explanatory Notes prepared by the respondent in August 1989 which stated: “Clause 10 Anchoring Out Allowance This allowance is paid to only one employee on board the vessel for each overnight absence.”. In their outline of submissions the respondent stated: “18. The Agency submits the anchoring out allowance was paid in substitution for the recall provisions of the Award relating to checks of the vessel to ensure the safety of the vessel and the passengers.”. At page 160 of the transcript of proceedings the Commission asked: “So you’re making a direct submission that the anchoring out allowance is in direct substitution for the call out provisions?”. To which Ms Evans replied: “Yes, Commissioner. As has been said at the Tribunal it is accepted by the Agency that it has become custom and practice that the Agency pays the anchoring out allowance to all employees on board vessels overnight. It is not known how or when this practice evolved, however the Agency’s contention is still that the allowance was in substitution for the recall provisions as stated in – as stated previously.”. Ms Evans referred the Commission to document 73 in Ex. 2 correspondence from Kumar Fernando, Acting Manager, Marine Safety M.S.Q. Brisbane Region to Mr Selwood wherein Mr Fernando indicated that “there is no mandatory requirement” for the Master of a vessel to conduct machinery and anchor checks while the Master is off duty and the vessel is at anchor. -- 2 of 4 -- 1248 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 16 April, 2004 Ms Evans stated that the performance of active duty would “involve a recall” (Transcript page 160, line 56) and that active duty did not include checks. Ms Evans cited the comments of Mr D. Cavanagh, advocate for then Director of Environment & Conservation, in the transcript of the joined matters B851, B869 and B864 of 1988 and B68 of 1989 (the matters that led to the establishment of the Award in question) as supportive of the Agency’s view that the Anchoring Out Allowance was meant to compensate employees for performing vessel checks while anchored out of port overnight. Ms Evans referred the Commission to Mr Cavanagh’s comments recorded at pages 370 and 371 of the transcript in those matters (Ex 2, doc. 19) where Mr Cavanagh stated in an answer to a question from Bougoure C regarding Anchoring Out Allowance: “That covers the Anchoring Out Allowance. We have a situation where we have call-outs being provided on the award. We have travelling allowance and we have anchoring out allowance. All of which are applicable to work or stand-by responsibilities at night.”. This is, at least, confusing. Mr Cavanagh also stated that “for actual work performed at night the callout provisions would apply”. In his decision Bougoure C. rejected the Stand By Allowance contended for by the Unions. In doing so, he said: “In relation to the proposed “Stand By Allowance” for Masters, I consider it desirable, as far as possible, that allowances in the Award apply consistently throughout the Conservation, Parks and Wildlife Service and that special allowances applicable to a limited number of employees be avoided in the Award. I reject this claim in favour of the application of the provisions as set out in the Supplementary Arrangements.”. Whilst the Commissioner was not specific as to which section or sections of the Supplementary Arrangements he was referring, he was obviously referring (inter alia) to Anchoring Out Allowance. Bougoure C. was of the view that the provisions in the Supplementary Arrangements to the Award (which included Anchoring Out Allowance) were sufficient compensation for an employee standing by. Ms Evans accepted this. (Transcript p. 166, lines 11-20) That was his decision. He did not then go on to determine that the Anchoring Out Allowance substituted for the recall provisions. Mr Reid stated in submissions that the Anchoring Out Allowance is paid to all employees overnight on vessels, not just the crew and not just Masters. He contended that the impact of the Transport Operations (Marine Safety) Act 1994, the Workplace, Health and Safety Act 1995, the Transport Operations (Marine Safety) Act 1995, the Transport Operations (Marine Pollution) Act 1995, the Protection of the Sea, Prevention of Pollution from Ships Act 1983 Commonwealth and The Great Barrier Reef Marine Parks Act 1995 Commonwealth, all operated to the effect that the checks performed by Mr Orchard were not voluntary but a requirement of his employment and given the wages and overtime nature of the Award, should be paid for. On a plain reading of the provision the terms of the Anchoring Out Allowance are clear and unambiguous. The payment of the Anchoring Out Allowance is not linked to the performance of any duty nor restricted to one employee per night. A conclusion obviously reached by the respondent when they, as they should have, commenced paying the allowance to all employees anchored out overnight regardless of the employees’ responsibilities. EPA’s interpretation of the Anchoring Out Allowance had been wrong to this point. I find that the Anchoring Out Allowance does not in any way diminish the effectiveness or impact in any way on the call back provisions contained in the Award. I accept the contention of EPA that the Anchoring Out Allowance (and the Supplementary Arrangements generally) are compensation for stand- by. Mr Orchard is not claiming a stand by allowance. He is claiming that he should be paid for the functions he performed at the times in question pursuant to the call back provisions. Therefore, the issue that remains to be determined is – do the activities of Mr Orchard at the times in question constitute a recall or call-out or do they, as EPA suggest, fall under the heading of stand-by? The Macquarie Dictionary defines “stand by”: “stand by, a. to wait in a state of readiness: stand by for further instructions.”. EPA submitted that where circumstances develop which require an employee anchored out overnight to perform active duty, then that employee is entitled to be paid in accordance with the call back provisions. They also conceded that this work could be authorised by the Master of a vessel without prior approval. An example of this might be the need to re-position the vessel after the anchor had dragged or to best position the vessel to cope with approaching inclement weather. Importantly the work performed in these circumstances is unforeseen and performed in response to developing circumstances. The evidence and submissions supported the notion that Mr Orchard also had, within his power, the ability to authorise overtime whilst at sea where essential unforeseen work was required out of hours. It was also established that where the requirement for overtime was foreseen, the procedure was that prior management approval was required. I accept Mr Orchard’s claim that he performed safety checks at or about the times claimed. The clause in question contains the terms “call back” and “called out” as well as “recalled”. The Macquarie Dictionary lists the definition of “recall” as inter alia: “to call back – summon to return”. This definition is accepted by the Commission and the Commission is also sympathetic to the definition submitted by Mr Reid “a summons to come back to perform duty”. -- 3 of 4 -- 16 April, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1249 Mr Orchard stated in evidence that he used a battery powered alarm clock so that checks are not missed. (Ex. 4, para. 28) He has not claimed that these checks were prompted by some event i.e. hearing or sensing something that raised concern. The checks performed by Mr Orchard were planned. They were not unforeseen or performed in response to an event. On the four (4) instances in question, Mr Orchard was neither recalled to work nor called out to work nor was he called back to work, he was at his workplace (the vessel) at all times, and, at all times bore the responsibility placed upon him as Master by various legislation especially in relation to the safety of passengers, crew and the vessel. The safety checks performed constituted actual work performed by Mr Orchard by his own choosing and not the result of being called back. The safety checks undertaken by Mr Orchard as a result of his pre-planned unilateral decisions could be overtime as opposed to a call back but this is not before the Commission. However, if it was overtime, it was not authorised by EPA in the normal way that foreseen overtime requirements are handled. Having considered the evidence and submissions of the parties, I answer the specific question put to the Commission in the negative. However, I have some sympathy for Mr Orchard and others in his predicament. It is abundantly clear that EPA should, and in the near future, produce a list of checking requirements for the performance of Masters of vessels anchored out overnight and establish a method of compensating employees for those requirements. I would strongly recommend the parties consider the Hours clause of the Award and specifically that part that allows flexible working arrangements. It is the view of the Commission that EPA would be acting less than prudently should they instruct employees responsible for vessels and people anchored out overnight not to conduct safety checks out of hours. D. K. BROWN, Commissioner. Hearing Details: 2003 3 December 2004 16, 17 February Appearances: Mr A. Reid, with Mr G. Selwood, for the Australian Institute of Marine and Power Engineers’ Union of Employees, Queensland District. Ms D. Evans, with Mr P. Bailey, for the Environmental Protection Agency. Released: 2 April 2004 -- 4 of 4 --