Janet Deveny-Salmon v Murdoch University
Document Type: Decision
Matter Number: M 29/2003
Matter Description: Murdoch University (General Staff) Enterprise Agreement 1997and/or Murdoch University (General Staff) Enterprise Agreement2000
Industry:
Jurisdiction: Industrial Magistrate
Member/Magistrate name:
Delivery Date: 22 Apr 2004
Result:
Citation: 2004 WAIRC 11382
WAIG Reference: 84 WAIG 1123
100422709
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT
PARTIES JANET DEVENY-SALMON
CLAIMANT
-V-
MURDOCH UNIVERSITY
RESPONDENT
CORAM MAGISTRATE G CICCHINI IM
DATE THURSDAY, 22 APRIL 2004
CLAIM NO M 29 OF 2003
CITATION NO. 2004 WAIRC 11382
_______________________________________________________________________________
Representation
CLAIMANT MR G STUBBS (OF COUNSEL) INSTRUCTED BY MESSRS DWYER DURACK LAWYERS
RESPONDENT MR S HEATHCOTE (OF COUNSEL) INSTRUCTED BY MESSRS CLAYTON UTZ LAWYERS
_______________________________________________________________________________
Reasons for Decision
Background
1 The Claimant is fifty-one years of age. In 1993 she commenced undergraduate studies and completed a Bachelor of Science Degree course at Curtin University of Technology. The following year she completed a Bachelor of Psychology course at the same university. In 1998 she commenced a Master of Applied Psychology Degree course at Murdoch University, which she has completed on a part-time basis. In 1999 during the period of her postgraduate studies at Murdoch University the Claimant’s attention was drawn to an advertisement placed on a notice board at the university by the Respondent seeking the services of a person to perform the duties of a Resident Co-ordinator at the Murdoch Student Village. The notice described both the nature of the position and criteria for appointment. It stated inter alia as follows:
RESIDENT COORDINATOR
VACANCIES IN 1999 AT STUDENT VILLAGE
Student Village is a Murdoch University residential college that caters for approximately 520 undergraduate and postgraduate students, and visiting academics from many different backgrounds and cultures, in self-catering flats.
It is the aim of Student Village to provide for its residents a community environment that is conducive to the achievement of academic excellence, personal development and a positive lifestyle. Five Resident Coordinators will be appointed to the Village staff in 1999 to assist the Village to achieve this aim. Each of the Resident Coordinators will be assisted by two Resident Assistants.
RESPONSIBILITIES
Provide assistance to the Assistant Director Residential by:
1. being responsible for a section of the Village housing approximately 100 residents
2. supervising residents to maintain their flats; approximately 20 flats
3. training and supervising two Resident Assistants
4. providing pastoral care and academic development of residents
5. implementing Village policies and rules
6. conducting check ins/outs and flat inspections each semester
7. maintain comprehensive records
8. act as Building Warden for the purposes of the University's Emergency Evacuation Procedures. Coordinators to provide a written report each time there is an incident .
CRITERIA FOR SELECTION
Applicants should:
1. be a postgraduate student or a member of the teaching staff of Murdoch University in 1999
2. have proven interpersonal and group leadership skills
3. be effective as a team member
4. have empathy with students from different cultural backgrounds.
A detailed Duty Statement for Resident Coordinators can be obtained from the Student Village Housing office by phoning 9360 2909 or calling at the Village Housing office (Building #32).
2 In furtherance of her enquiries concerning the position the Claimant, on 11 June 1999, downloaded a page from the Respondent’s website concerning the position. The web page contained more specific information about the position including further details concerning the duty statement, criteria for selection, remuneration and the like. It is appropriate that I set out the relevant parts of the web page:
Headline: Vacancy - STUDENT VILLAGE
Summary: RESIDENT COORDINATOR - Murdoch staff or postgraduate students only to apply
(Closing date 14 June 99)
Details: VACANCIES IN 1999 AT STUDENT VILLAGE
FIXED TERM APPOINTMENTS (PART TIME)
Student Village is a Murdoch University residential college that caters for approximately 520 undergraduate and postgraduate students, and visiting academics from many different backgrounds and cultures, in self-catering flats.
It is the aim of Student Village to provide for its residents, a community environment that is conducive to the achievement of academic excellence, personal development and a positive lifestyle. Due to the resignation of one of our residential staff members, a Resident Coordinator position for Semester 2 is now available and will commence 5 July 1999.
DUTY STATEMENT
Under the leadership of the Assistant Director (Residential) the Resident Coordinator will:
1 Maintain acceptable standards of community living in Student Village, especially in regard to levels of noise and cleanliness
2 Provide primary pastoral care to the residents of Student Village
3 Support the maintenance of the physical assets of Student Village
4 Promotion of social interaction among residents of Student Village
(Resident Coordinators are assisted by two Resident Assistants.)
CRITERIA FOR SELECTION
The successful applicants will:
1. be a postgraduate student or a member of the teaching staff of Murdoch University in 1999
2. have proven interpersonal and group leadership skills
3. have ability to work as part of a team and maintain effective working relationships with a broad range of people
4. have empathy with students from different cultural backgrounds
5. be available to work flexible hours without supervision
6. be a good role model for residents and to positively contribute to the overall running of the Village.
APPOINTMENT
The Resident Coordinator position is for one semester (from 5 July to
4 December 1999) and the appointee is required to reside at Student Village during this period. Training will be negotiated with the successful applicant and he/she will be eligible to apply for re-appointment the following year.
REMUNERATION
The Resident Coordinator will be paid on a part-time fixed term contract for 22 weeks at $489.39 per fortnight plus membership to Tertiary Education Superannuation Scheme. A separate two bedroom furnished flat is provided for at weekly rental of $97.00 inclusive of water, electricity and gas, and modem access.
3 It suffices to say that the Claimant made her application for the position, was interviewed and was successful in attaining the same. On 22 June 1999 the Respondent wrote to the Claimant informing her that she had been successful in her application. She was informed that her employment was to be for one semester from 5 July to 4 December 1999 and that she was expected to reside in the Student Village during that period. She was further informed that her remuneration would be based on a part-time fixed term contract for 22 weeks at $489.39 per fortnight. A separate three bedroom furnished flat was to be provided for a weekly rental of $97.00 inclusive of water, electricity, gas and modem access.
4 The Claimant accepted the offer of employment and on 29 June 1999 signed a contract of employment. The contract of employment adopted the terms and conditions of the Murdoch University General Staff Enterprise Agreement 1997 (1997 EBA). The contract of employment specified that the Claimant’s classification was H0505 on salary step 10. Her weekly hours were designated to be 13.88 comprising 37% of a full time position.
5 The contract contained a statement detailing her major duties. It provided inter alia:
THE CONTENTS OF THIS STATEMENT MAY BE VARIED ONLY WITH THE APPROVAL OF THE DIRECTOR HUMAN RESOURCES
Duty No.
Summary of Duties
Frequency
% of total time
Under the leadership of the Assistant Director (Residential) the Resident Coordinator will:
1.
Maintain acceptable standards of community living in Student Village, especially in regard to levels of noise and cleanliness.
50%
2.
Provide primary pastoral care to the residents of Student Village.
25%
3.
Support the maintenance of the physical assets of Student Village.
20%
4.
Promote social interaction among residents of Student Village.
5%
6 The Claimant carried out her duties in accordance with the terms of her contract of employment through to the end of the second semester in 1999 at which time the contract ended. She subsequently re-applied for the position for the 2000-year and was successful in that regard. Her 2000 contract commenced on 31 January 2000 and expired on 4 December 2000. The terms and conditions of employment were set pursuant to the 1997 EBA until on or about 1 October 2000 at which time the Murdoch University (General Staff) Enterprise Bargaining Agreement 2000 (2000 EBA) took over.
The Claim
7 The Claimant alleges that despite the contractual obligations requiring her to work 13.88 hours per week she was in fact required to work substantially more hours than those stated in the contract. Her 1999 contract contemplated the 13.88 hours being worked on duty roster every 5 days. The roster varied in length between 5.00 pm to 11.00 pm on Monday to Thursday, 5.00 pm to 1.00 am on Friday, 8.30 am to 1.00 am on Saturday and 8.30 am to 11.00 pm on Sunday. The Claimant says that above and beyond the roster she was also required to do the following:
(i) complete substantial training at the commencement of the employment, including a three day team building exercise at Rockingham;
(ii) supervise and facilitate the students moving into the Student Village and signing their residency contract at the commencement of each semester ("Check-Ins");
(iii) hold an initial flat meeting at the commencement of each semester in each flat;
(iv) attend a Student Village Orientation day at the beginning of each semester;
(v) carry out regular flat inspections;
(vi) hold an initial individual interview with each student;
(vii) attend weekly Residential Staff meetings;
(viii) attend and complete ongoing emergency training;
(ix) organize and attend various Student Village functions and activities including sports' days, parties/dinners and dances;
(x) be on stand-by at the end of each Roster and respond to any telephone complaints and/or requests for help. This stand-by period commenced at the end of the Roster and continued until 8:30am the following day;
(xi) return the duty telephone and Student Village keys to the Residential Staff Office at the completion of the stand-by period; and
(xii) facilitate the vacation of the Student Village ("Check-Outs") by students at the end of or during each semester, including inspecting bedrooms, common areas and through levying cleaning charges.
8 The Claimant says that notwithstanding the provisions of the EBAs she was not remunerated for hours worked outside the base roster. Indeed she was only remunerated for the rostered hours at ordinary rates despite most of the roster falling outside the definition of “Ordinary Hours” as defined by the EBA.
9 Her situation in 2000 was almost the same save that:
(i) the weekly rosters commenced at 4.30 pm instead of 5.00 pm,
(ii) the initial meeting with each student at the beginning of each period of residence was incorporated into the check-in, and
(iii) A higher hourly rate was payable on or after about 1 October 2000 in accordance with the 2000 EBA.
10 The Claimant maintains that the Respondent has failed to pay her in accordance with the 1997 and 2000 EBA. In that regard she claims she was not paid the correct rate for working outside ordinary hours and that she was not paid for overtime worked. It follows accordingly that she claims not to have been paid the correct pro-rata annual leave.
11 The Claimant says that she has been underpaid a total of $18,604.97 exclusive of the annual leave underpayment. The alleged annual leave underpayment has not been quantified. The amount sought represents a scaled down amount compared to the amount of $36,929.90 originally sought in the claim as filed on 21 February 2003.
Response
12 In its particulars of defence filed on 11 July 2003 the Respondent has set out the co-ordinators’ responsibilities. It is appropriate to repeat the relevant paragraphs thereof:
Co-ordinator's responsibilities
Each of the Co-ordinators is allocated, according to a roster, to various periods during each week in which they act as the primary contact for Residents in need of out of hours support. The rosters typically require the Co-ordinator to be available to be called over a span of approximately 16 hours during 1 week day and for up to 24 hours on a Saturday or Sunday.
The Co-ordinators were not always required to personally respond to a Resident's call for support. During certain hours designated by a roster, the Co-ordinators had access to one or more Assistants to who calls were referred for action.
The Co-ordinator was only required to personally respond to calls for support that occurred, essentially during the hours in which the Residents would be expected to be asleep.
The Co-ordinator's role typically required the Co-ordinator to:
(a) collect keys and a mobile phone from either, the Respondents regular employees or the Coordinator rostered for the preceding period;
(b) unlock buildings and facilities that were commonly available to the Residents;
(c) meet with the Assistants they would call upon for assistance that day;
(d) hand out any sporting equipment or other property the Village made available for the Resident’s use;
(e) remain available to be contacted by a Resident and to arrange for support to be provided;
(f) lock up common areas at the end of the day;
(g) enforce the Village's curfew requirements;
(h) remain available to provide support to a Resident if called upon; and
(i) return the keys and mobile phone to either, the Respondent's regular employees or to the Coordinator rostered to be on-call during the next period.
In all, the specific tasks the Co-ordinator was required to perform occupied the Co-ordinator for approximately 2 hours. The balance of the time could be spent as the Co-ordinator wished so long as that was consistent with the Co-ordinator being available to arrange support for a Resident or to personally support a Resident if called upon to do so.
The creation of the Village Office in 2000 meant that, during hours when the Assistants were available, the office became the Residents' primary contact point and the Co-ordinators only needed to be contacted when a matter arose that an Assistant could not resolve.
Apart from the responsibilities set out in (the) paragraph … above, the Co-ordinators were also required to assist the Respondent's regular employees with:
(a) checking-in the Resident's at the beginning of the academic year; and
(b) checking-out the Residents at the end of the academic year.
The Co-ordinators were also required to:
(a) attend some training programmes; and
(b) assist with, and attend, social functions organised for the Residents.
13 The Respondent says that the Claimant was paid an annual salary equivalent to 37% of a full-time salary set notionally at level 5 within the pay structure in both the 1997 and 2000 EBA. The all-up salary was based on an aggregation and time that the Claimant might be expected to work in relation to:
(a) check-in for incoming Residents;
(b) attending training as required;
(c) assisting with, and attending, social functions organised for the Residents;
(d) attending to routine opening up and locking up tasks;
(e) remaining available during specified periods for contact by Residents who are in need of out of hours support;
(f) arranging for Assistants to provide support to Residents as required;
(g) providing direct support to Residents as required; and
(h) check-out for departing Residents.
14 The Respondent points out that the Claimant’s yearly salary was averaged out so that the Claimant received the same salary each fortnight as an all inclusive amount in satisfaction of the Respondent’s obligation to remunerate the Claimant for the hours worked and her on-call responsibilities. It says that the payments it has made to the Claimant as salary have satisfied the financial obligation it has to the Claimant arising from both the 1997 and 2000 EBA in relation to her work as a co-ordinator. It accordingly denies it has breached the relevant certified agreements as alleged and denies that the Claimant is entitled to the relief sought.
Claimant’s Evidence Concerning Her Duties
15 The Claimant testified that she was appointed as the Resident Co-ordinator responsible for about 100 students and 20 flats in the Banksia Courtyard. There were also other Courtyards, which, together with Banksia, formed the Murdoch University Student Village. There was one supervisor who oversaw the operations of the village as a whole. Each courtyard had its own co-ordinator assisted by two Resident Assistants (RA’s) who were engaged to help the co-ordinators in their duties. The RA’s were undergraduate students living at the village who were compensated for their work.
16 The Claimant said that she was, in the performance of her duties, always accessible by telephone or e-mail. Indeed her unit was necessarily structured in such a way that one of the bedrooms was dedicated as an office for such purposes. The office was used to facilitate contact by the co-ordinator with internal and external agencies concerning student needs.
17 The Claimant testified that when first appointed she did not take part in any induction course but rather was assisted in finding her feet by other co-ordinators and RA’s. She did however at the commencement of the 2000 employment year take part in an induction program. She had however attended a Suicide Prevention Seminar in 1999. She explained that many of the residents first joining the village were overseas or country students who were away from their homes for the first time. Consequently there was a need to ensure that those students feeling lonely and homesick had support. Pastoral care was a significant component of the job.
18 A student arriving at the village needed to be “checked-in”. That involved the co-ordinator attending to the relevant paperwork, taking the student to the flat, inspecting the flat, completing an inspection sheet and handing over the keys. The co-ordinator would introduce the new student to other student residents and also become involved in the preparation of a cleaning roster for the flat. Each flat comprised anywhere between three and eight bedrooms. Each student paid rent for his or her bedroom and was responsible for cleaning communal areas.
19 Other duties performed by the Claimant with the assistance of RA’s included attending to security checks of the grounds, ensuring that parties ended by a reasonable time, that lights were out and so on. Noise complaints would be attended to. Any noisy party would be broken up. Drunken students would be dealt with and, if necessary, stereo equipment turned off. The Claimant attended to break downs, power failures and the like. She was also involved in the planning of social and sporting events for the particular courtyard and the village overall. She was required to carry out flat inspections and give notice of the same. Her duties accordingly varied from week to week.
20 At the commencement of each rostered shift the Claimant was required to pick up from the Residential Staff Office (RSO) a set of keys and also a mobile telephone referred to as “the 6555 phone”. Students would routinely call her on that number outside of office hours seeking assistance to get into their flat if they had been inadvertently locked out, to gain access to communal rooms, to obtain sporting equipment and the like. During normal office hours the RSO attended to such matters. The Claimant was responsible for the collection of walkie-talkies from the RSO and was responsible for keeping them in charged state. Walkie-talkies would be given to the RA’s so that the Claimant could remain in contact with them whilst patrolling or carrying out other functions.
21 Apart from being on call and carrying out the other functions hereinbefore described, the Claimant was also required to attend regular weekly meetings involving other co-ordinators and also fortnightly meetings involving the other co-ordinators and all RA’s. Such meetings would take anywhere between one and a half to three hours. The Claimant was also from time to time required to attend flat meetings.
22 The Claimant explained that the co-ordinators and RA’s worked as a team within each courtyard and across the village. Part of their role was to promote social and sporting activity in order to maintain morale. As a consequence the Claimant necessarily became involved in a number of social activities that she assisted to organise including “Mexican nights”, “Popcorn nights”, “Movie nights” and “Quiz nights” and others. She was involved in purchasing food and other necessities for such functions as well as cleaning up afterwards. There was an expectation that the co-ordinators would support their team and the other co-ordinators in such social activities.
23 The Claimant testified that she maintained a record of what she did in her 1999 personal diary. In 2000 a record of her activities was kept in the 2000 office diary. It is the information contained within those diaries that records the times worked which supports her claim.
24 The Claimant testified that she was on duty from 5.00 pm to 11.00 pm Monday to Thursday, 5.00 pm to 1.00 am on Friday into Saturday morning, 10.00 am Saturday until 1.00 am Sunday morning and later between 10.00 am and 11.00 pm on Sundays. On each Monday public holiday she was required to be on duty from 10.00 am to 11.00 pm whilst on Friday public holidays she was required to remain on duty until 1.00 am.
25 The village was governed by rules that were strictly enforced, particularly prior to exam times. For example, there was a no tolerance policy regarding excessive noise. Further there were regular flat inspections to ensure compliance. Even when off duty, the Claimant felt duty bound to intervene when rules were not being complied with.
26 The Claimant testified that she prepared what now has become exhibit 20. The document is in two parts and is in the form of a spreadsheet outlining both her 1999 and 2000 shift claims. Within the spreadsheet, under the heading “evidence”, she discloses the evidentiary basis for making the claim with respect to each particularised day. She explained that she prepared the spreadsheets from information taken from her 1999 personal diary, from copies of the village diaries and from the village rosters. In that way she was able to reconstruct the days worked, the commencement and finish times of any given shift and the total number of hours worked.
27 She illustrated how the spreadsheet worked by reference to the spreadsheet entry for 15 July 1999. In that regard she said that her 1999 diary disclosed that she had marked off RC (Resident Co-ordinator) meeting between 8.30 am and 10.00 am. The duty roster for the period including that day discloses that she was not on duty that day. Accordingly she concludes that the meeting took place outside of her rostered hours. Another illustration is provided by reference to the entry for 18 July 1999. The spreadsheet indicates that she attended a BBQ and dance that day and worked from 4.00 pm until 1.00 am the following morning. The information in that regard is derived from her personal diary. When the entry is cross-referenced with the duty roster it discloses that her duties that day were outside her rostered hours. Similarly the spreadsheet indicates that on 22 July 1999 the Claimant was on duty and carried out flat meetings. Her personal diary discloses that the meetings took place between 6.00 pm and 8.00 pm and the rosters confirm that she was on duty that day.
28 The spreadsheet entry for 23 July 1999 indicates that the Claimant was on standby. She explained that what that meant was that she was required, following her rostered duty on 22 July 1999, to retain the mobile telephone and keys overnight for call out so that she could render assistance to students in need. Although there is no entry in her diary for 23 July 1999 disclosing that she was on standby, the fact nevertheless remains that a standby situation inevitably followed her rostered duty. With respect to the issue of the standby claims, the Claimant explained that she believed that she was under a duty following the completion of her rostered duty to be on standby until 8.30 am the next morning to attend to student needs. Indeed she did in fact attend to their needs. For example, if the telephone rang at 3.00 am and a student told her that he or she had been locked out, she would necessarily get up out of bed, get dressed and then attend to letting the student in. She said that she did that because,
“… you can’t leave students out at night if they’re locked out. They become quite distressed”.
29 Apart from lockouts she also had to attend to such things as power black outs, electrical circuits tripping, re-igniting hot water systems that had gone off. Accordingly she necessarily had to attend to any village student who needed help after hours. It was the case that whilst on standby the Claimant remained in the village and was readily contactable.
30 The Claimant next referred to the entry in exhibit 20 for 25 August 1999. Relative to that date she wrote within her personal diary “RC/RA meeting” at 5.40 pm. She also made a notation within the diary that a community policing meeting was to be held that evening at 7.00 pm in the recreational room. She said that the RC/RA meetings usually took more than one and a half hours but because the police were attending at 7.00 pm that night she surmised that the particular meeting only took one and a half hours. She estimated that the police meeting then took about two hours.
31 The Claimant then went on to cite other specific examples to demonstrate the process by which she came to make her claim for each day. It suffices to say that the mode adopted remained the same throughout the 1999-year. She said that she necessarily had to undertake that process because her employer failed to provide time sheets that would have enabled her to record the start and finish times of meetings or other activities.
32 The Claimant testified that the situation in 2000 was somewhat different in that she did not maintain a personal diary. Accordingly she does not now have any documentary evidence to support, for example, the amount of time spent doing “check-ins” and “flat meetings” in 2000. In that regard she relies on her memory of the standard practices adopted. Indeed she relies on such in the case for all the entries with respect to those items contained on the spread sheet for the 2000 year leading up to and including 13 February 2000 and for the entries for 22 to 24 February 2000 inclusive. The Claimant accepts that she is unable to establish by use of documentary evidence available to her that she worked on those days. Further she concedes that the hours she allegedly worked are open to dispute. All she can say in that regard is that she knew that she carried out the “check-ins” and attended the “flat meetings” during that period and that the hours claimed have been deduced from her knowledge of work practices and from discussions she has had with other Resident Co-ordinators. In order to substantiate her claims that she attended flat meetings in the early part of 2000 the Claimant produced notes of a RC meeting held on 17 February 2000 in which is recorded that there were to be flat meetings the following Tuesday (22 February) and Thursday (24 February) (see exhibit 10). That supports the fact that there were planned flat meetings for those days. On the strength of that she has made claims for those in exhibit 20. However it is of particular note that she has also made a claim for 23 February 2000 despite the fact that the documentary evidence does not support the same.
33 The balance of the spreadsheet for the 2000-year reflects claims for duty hours worked together with a claim for “standby” payments for periods immediately following those duty hours worked. The Claimant says that the village diary together with other records discovered by the Respondent support her claims in that regard.
34 The Claimant testified that at the end of the 2000-year she was also paid extra for doing “check-outs”. In that regard she was required to keep a record of the hours worked so as to facilitate the extra payment. Further, at the commencement of the 2000-year she was also paid extra for the development of a training program. Additionally she received a subsidised “ball ticket” that year.
35 Cross-examination of the Claimant was lengthy. Indeed she was challenged with respect to most of the entries that she made within the spreadsheet (exhibit 20). With respect to exhibit 20 the Claimant told the Court that the same was compiled from information available to her which supported the entries. She conceded that it is conceivable that if the information used to compile the spreadsheet were wrong then it would follow that the entries themselves would be wrong.
36 When cross-examined the Claimant confirmed that she was required to work 13.88 hours per week and that she would be subject to a duty roster. She said that at the time that she took the job on she believed that she would do all of the work within 13.88 hours on a rostered basis. She also accepts that at the time she understood that social functions would ordinarily take place outside of the allotted 13.88 hours. However notwithstanding that, there was an expectation that she attend social functions outside of those hours. Further she also acknowledged that the RC/RA meetings would usually occur outside of rostered duty time. She was aware that there were duties to be performed outside duty times. She accepted that the duty rosters did not necessarily reflect work for 13.88 hours.
37 The Claimant testified under cross-examination that whilst on duty she did more than just respond to calls and do security checks. During such times she, with the assistance of RA’s, distributed fliers, conducted surveys, conducted quick flat inspections (walkthroughs), attended to necessary paperwork and became involved in counselling and mediation. She also frequently responded to calls made on the 6555 telephone. Those calls occurred both during rostered hours and after such times. She had to necessarily respond to all manner of queries and differing situations.
38 The Claimant was also cross-examined about the accuracy of her claim, as it was when it was first filed. In that regard she agreed with the proposition that her claim represented an “ambit claim for negotiating purposes”.
39 With respect to RC/RA meetings the Claimant conceded that she did not attend all of them but said she was generally expected to attend such meetings. She conceded that she was not disciplined nor had her pay docked for failing to attend such meetings.
40 She was next taken in cross-examination to consider her diary entries for 1999. In particular she was asked questions concerning the entry for 8 July 1999. That entry indicates that there was to be a Resident Co-ordinators’ meeting held at 5.00 pm. It also indicates that the Claimant was to be at the Regal Theatre at 6.00 pm. It was put to the Claimant that the entries are not consistent with her contention that the RC meetings took an hour and a half. She responded by saying that she would have gone to the Resident Co-ordinators’ meeting but possibly not for the full one and a half hours. Having said that, the Claimant said she could not say whether she actually attended the Regal Theatre on that day at that time. In that regard the Claimant conceded that the entry within the diary cannot be actually relied upon to demonstrate actual performance of any appointment.
41 The Claimant was also taken to consider the entries in the diary for 25 August 1999. They show an entry for a RC/RA meeting at 5.40 pm and a police meeting called for 7.00 pm to discuss the then recent spate of assaults. The entries show that the RC/RA meeting was to commence at 5.40 pm. Notwithstanding that, the Claimant claimed in exhibit 20 that she attended the meeting for one and a half hours commencing at 5.30 pm. In that regard, the Claimant acknowledged that the spreadsheet was obviously erroneous possibly as a result of a typographical error. As to the police meeting that followed, she conceded that she could not recall the exact time that the meeting finished. She said that she only estimated the time of completion of that meeting. She said that she was expected to be at that particular meeting in her capacity as Resident Co-ordinator. She rejected the contention that she attended the meeting merely as an interested party just like all the other residents of the student village. Notwithstanding that she agreed that, given that she was a resident of the village, not everything that she did connected with the village related to her employment.
42 The Claimant was also asked about the requirement that she attend social functions. She acknowledged that she did not attend the student village ball held on 3 September 1999. She said that she was not expected to attend that function because it was not a function held within the student village. The Resident Co-ordinators had nothing to do with its organisation. By contrast the Claimant said that she was expected to attend and did in fact attend the inter-courtyard soccer match held on 19 September 1999. The Claimant was then asked whether she attended a dinner on 21 June 2000. She could not recall whether she had or she had not. She was then shown an e-mail that she sent to a superior indicating that she would not be attending the dinner because of other pressing engagements. She consequently conceded that she had missed that particular social function but agreed that she was not reprimanded for it nor had any pay been deducted for failing to attend. She conceded that she was still paid notwithstanding that she failed to attend some social functions.
43 The Claimant was next taken to compare the photocopies of the 1999 diary entries initially discovered and the original diary subsequently produced. The copy contained certain blocking out. The Claimant said that she blocked out particular entries because they were personal to her and she considered such entries not to be relevant to the matters in dispute. It was put to the Claimant that she wilfully blocked out information that would have cast doubt concerning the accuracy of her claim. In response she said that there was no intention on her part to mislead. Having said that she readily conceded that the blocking out could have conceivably misled the Respondent but maintained that that was not her intent.
44 To illustrate the problem created by the blocking out, the Claimant was taken to consider the spreadsheet attached to the Particulars of Claim filed 5 May 2003. On that spreadsheet the entry for 17 July 1999 discloses a claim for fifteen hours worked. The discovered photocopy of the diary for that day shows a blocking out and otherwise no entry. A perusal of the original diary discloses entries for the Regal Theatre at 12.14 pm and again at 6.00 pm and also refers to an “after show party”. It was put to the Claimant that had she not blocked out the diary entry in the copy discovered it would have been demonstrated that her claim for that day was false. It was put to her that the blocking out was aimed at hiding the falsity. She denied that, saying that the blocking out occurred because the entries did not relate to work. It is noted that the claim for 17 July 1999 is now no longer pursued and that the claim has changed materially between the date of filing and the actual hearing of this matter. The Claimant was also taken to consider a number of other illustrations demonstrating the same type of difficulty. There can be no doubt that the production of the original diary caused a revision of aspects of the claim that simply could not be maintained given the apparent inconsistencies. The Claimant maintained throughout that there was no intent on her part to mislead. In fairness to the Claimant it must be recognised that she was not solely responsible for the compilation of the original spreadsheet attached to the claim filed on 5 May 2003.
45 The Claimant told the Court under cross-examination that she did not keep a 2000 personal diary relative to the student village purposes. She did, however, make work related entries in the student village diary. Various people including the Claimant completed that diary. The Claimant identified several instances within the diary (exhibit 25) where her handwriting is found. In that regard she was questioned concerning the chronology of entries made given that on some days there are several different entries made, each with a different pen. The Claimant explained that such entries may have been made either contemporaneously with the happening of an event or at the end of a duty period. They could have been made either within the office or alternatively within her own unit. That explains the use of different pens.
46 The cross-examination of the Claimant also addressed the interrelationship between the rosters, the 1999 diary and the spreadsheets. The Claimant’s attention was drawn to the fact that the roster for 2 July 1999 indicates that she was on duty for that day and that she initially made a claim for having worked eight hours that day (which is now abandoned) whilst the relevant diary entry indicates that she was not working. In that regard the Claimant conceded that Resident Co-ordinators did swap from time to time. It would accordingly follow that just because the Claimant’s name was on the roster to work a specific day, it did not necessarily follow that she did in fact work that day. Accordingly the duty rosters do not alone necessarily identify the days actually worked.
47 The Claimant was also specifically taken to consider her claim for 8 July 1999 and in that regard conceded that her claim encompassed a paid meal break. With respect to 9 July 1999 the Claimant claimed eight hours work for “check-ins” from 12.00 noon to 8.00 pm, yet her diary shows an entry for the Regal Theatre at 6.00 pm. In that regard the Claimant concedes that she cannot say whether or not she attended the Regal Theatre that day. She also concedes that she does not know how many “check-ins” she did. She also concedes that she cannot say positively whether she worked between noon and 8.00 pm as indicated in exhibit 20 notwithstanding that she swore positively to the accuracy of that document.
48 Further cross-examination revealed that the Claimant was in similar difficulty with respect to other claims made for 1999. The Claimant admitted that many of her finishing times as reflected in exhibit 20 were simply estimates. The difficulty in that regard is demonstrated by the following exchange found at page 160 of the transcript:
MR HEATHCOTE: - 24th of July. Now on the 24th of July your particulars say that you worked for 16½ hours. Could you show me in the diary entry that corresponds to that where that 16 hour figure comes from?---On the 24th of July. I did Steve Shaw’s shift for that day.
How do you know that?---Okay. Based on that you wouldn’t know, would you?
And yet you’re saying to this court that you worked from 8.30 in the morning till 1 am. You say that it’s based on the diary. I’m trying to - - trying to find out from you where in the diary you get those numbers?---Well, I think it’s got written there 10 am to 1 am on duty; marathon movies in the rec room.
So which is right; exhibit 20 or the diary?---Your guess is as good as mine.
49 Another illustration showing that exhibit 20 is not necessarily accurate is demonstrated by the entry that relates to 20 October 1999 in which the Claimant claims to have worked six hours that day. Her personal diary shows that she was in Broome. The Claimant conceded that she was in fact in Broome on that day.
50 The Claimant was also cross-examined about her year 2000 claims. She was firstly cross-examined about her claims for work done during February. She was questioned about her attendance at the Point Peron residential staff weekend held on 5 and 6 February 2000. In that regard she said that it was a mandatory requirement that she attend that weekend and did in fact do so. With respect to other entries made for early February 2000 the Claimant admitted that the same were simply estimates. She conceded that she did not know her start times or finish times or indeed the length of time worked. She could not say if there were interruptions on account of meal breaks or for other reasons. The Claimant was next taken to consider the claim for 20 February 2000. She claims having worked thirteen hours that day from 10.00 am to 11.00 pm but the student village diary shows the first entry to be at 5.00 pm. The Claimant admitted not having any specific recollection of that day but surmises that she attended to other duties prior to 5.00 pm on that day. She also admitted that she could not substantiate her claim for flat meetings on 22, 23 and 24 February 2000 other than by relying on the fact that it was standard practice. The Claimant explained, when questioned about her claim for 28 February 2000, that she was permitted to go anywhere within the student village as long as the RSO (Residential Staff Office) was manned by herself or by an RA. Further she could go anywhere within the village provided that she carried the 6555 telephone and remained contactable. In such situations she could study or attend to other personal needs so long as she remained contactable.
51 The Claimant was also cross-examined as to whether she recalled having worked on the specific days forming part of exhibit 9 (extracts of the 2000 village diary). She said that she could not but relied on the diary to support her claims. Furthermore she could not recall the specific starting times of her duties on those days but relied on the fact that her duty commenced at certain times and finished at certain times dependant upon the day of the week.
52 The Claimant was also cross-examined concerning her claim for 15 May 2000. The Claimant alleges that she was on duty between 4.30 pm and 11.00 pm on that day. It was put to her that exhibit 27 (an e-mail sent to her by the Assistant Director, Mr Desmond Samuelu) is indicative of the fact that she may have been at the Murdoch Club for at least a portion of the evening and that someone else took over her duty during such absence. The Claimant said in that regard that she had no recollection of having attended the Murdoch Club at that time.
53 There is no particular need to review other aspects of the cross-examination of the Claimant. It suffices to say that she was taken through almost all of her claims and was asked questions concerning her recollection of what happened on those particular days. It is fair to say that the Claimant, in response to those questions, could not recall with any degree of particularity what actually occurred on those days. She relied on her knowledge of usual practices to give substance to what was recorded in the diary. It was her evidence that in 2000, as had been the case in 1999 that following the conclusion of her rostered duty she remained contactable at all times and in fact responded to calls until it was time to hand in the 6555 telephone the next morning.
54 During re-examination the Claimant re-affirmed that the reason why she blanked out information from her diary was so as to delete personal information that she considered not to be relevant to her claim. Further the Claimant explained that exhibit 20 was produced as a result of her preparation for the hearing of this matter. There was slimming down of the claims in that only claims having some documentary support were included. The Claimant also reiterated that pastoral care and social interaction was considered to be a very important part of her function. Concerning the issue of meal breaks the Claimant said that she was always on duty whilst having meals.
Desmond Tautua Samuelu
55 Mr Samuelu was the “Assistant Director, Residential” for the Murdoch University Student Village from January 1999 until the end of 2003. He was in charge of the Resident Co-ordinators.
56 He said that the Resident Co-ordinators’ job entailed pastoral care for five hundred or so students. The concern was to look after the health and safety of the students, be it physical or mental. The Resident Co-ordinators were expected to perform their duty during rostered hours and also outside of those hours. He explained that the village consisted of five courtyards, each with a co-ordinator. Consequently each co-ordinator was rostered to be on duty every fifth day.
57 He explained that co-ordinators were required to undertake training prior to commencement. Part of their duties included “checking-in” students however no particular record was kept of the performance of such duties. “Check-ins” took place during peak periods at the commencement of each semester. “Check-in” involved taking the student to the flat, introducing him or her to his or her flatmates, signing their contracts, providing a key and orientating them. Co-ordinators were also responsible for organising flat meetings and social functions. They were also required to participate in an orientation BBQ and other social events.
58 Co-ordinators played a vital role even outside of duty hours in ensuring that the village was maintained in a fit state. For example, if there were rubbish outside someone’s flat, the co-ordinator or any other staff member who saw it would be expected to intervene. They were also expected to deal with any conflict situation that might arise at any time within the courtyard. Their role was to be the “ears and eyes and to provide peer and mentoring support for the residents”. They were required to attend to breakdowns in units, attend to lockouts and the like. RA’s helped them out in those tasks but could not and did not become involved in some aspects of the duties such as conflict resolution and some flat inspections.
59 The RA’s were responsible to the co-ordinators and took their directions and orders from them. They had to participate in regular meetings. They consisted of a weekly meeting for Resident Co-ordinators and fortnightly meeting involving all Resident Co-ordinators and RA’s. He said the Resident Co-ordinators’ meetings usually took about an hour whilst the RC/RA meetings usually took an hour and a half.
60 Part of the Claimant’s duties included doing inspection rounds of the village at 9.00 pm and 11.00 pm Sundays to Thursdays inclusive and at 9.00 pm, 11.00 pm and 1.00 am on Fridays and Saturdays. The round entailed ensuring that the RSO and computer labs were safe, ensuring that there were no strangers about or using the facilities, checking study rooms and flats to ensure that there was no noise, checking the laundry areas, closing up common areas and other communal facilities. There was a requirement that parties be put to an end and that all sports equipment returned. However the overriding priority throughout was that of the safety of the students.
61 Following the conclusion of the co-ordinator’s rostered duty he or she retained the duty telephone in order to respond to any call received between the end of duty and the next morning.
62 Mr Samuelu testified that he was party to a meeting in which the Director, Mr Keith Cook, threatened the Claimant with dismissal on account that she could not attend on orientation day. The issue was subsequently resolved when the Claimant later met with Mr Cook.
63 Mr Samuelu testified under cross-examination that he was involved in the recruitment of the Claimant. He said that the Claimant was told that her duties involved not only being on roster, but also carrying out “check-ins”, “check-outs”, flat inspections, being involved in meetings, attending social functions and also taking part in orientation activities.
64 He agreed when cross-examined that not all Resident Co-ordinator or RC/RA meetings took place. Nor for that matter did all the Resident Co-ordinators attend all meetings. He also said that “check-outs” were scheduled to suit the Resident Co-ordinators’ needs. He said that in 2000 one of the Resident Co-ordinators had left early and accordingly the remaining Resident Co-ordinators were paid separately to do the “check-outs” in recognition of the extra burden placed on them by virtue of one of their number leaving early.
Respondent’s Case
65 The Respondent elected not to call evidence.
Findings on Critical Issues
66 The Respondent is a university that provides on-campus accommodation for approximately five hundred students in its student village. The village is divided up into five separate courtyards, each housing approximately one hundred students. At the material times each courtyard had a dedicated supervision team comprising one Resident Co-ordinator and two Resident Assistants. The Resident Co-ordinators lived within the courtyard for which they had responsibility. Each Resident Co-ordinator had a flat for which rent was paid. The RA’s lived in shared accommodation in the general residential flats. The RA’s were under the direct supervision of the Resident Co-ordinator who was in turn responsible to the Assistant Director, Residential.
67 The Claimant was employed on 5 July 1999 as a Resident Co-ordinator. Her employment was subject to the 1997 EBA. I find that she was employed as a Level 5 employee pursuant to the 1997 EBA. I also find that she did not enter into any flexible remuneration agreement. The contract expired at the end of the second semester in 1999. The Claimant was required to work a duty roster every fifth day when she was responsible for overseeing the entire student village. The hours of duty varied depending on which day of the week her duty fell. I accept that her duty hours were as follows:
· If the duty fell on Monday to Thursday the Claimant was on duty between 5.00 pm and 11.00 pm,
· If the duty fell on a Friday the Claimant was on duty between 5.00 pm and 1.00 am the following morning,
· If the duty fell on a Saturday the Claimant was on duty between 10.00 am and 1.00 am the following morning,
· If the duty fell on a Sunday the Claimant was on duty between 10.00 am and 11.00 pm,
· If the duty fell on a Public Holiday the Claimant was on duty between 8.30 am and 11.00 pm.
68 I also accept that at the end of each duty period the Claimant remained at her premises within the student village and was immediately available to respond to requests from residents or deal with any problems that arose within the village. My acceptance of the Claimant’s evidence and that of Mr Samuelu supports that. Exhibit 9 also accurately reflects the call out situation. It is the case that the Claimant retained the on-duty mobile telephone, “the 6555 telephone”, for that purpose and that she did respond personally to calls received. I also find that at 8.30 am on the morning following her rostered duty the Claimant would return the duty telephone and master keys to the RSO.
69 In addition to the rostered duty the Claimant was required to attend training sessions, perform “check-ins” and “check-outs” and also attend regular meetings. I also accept that she was involved with village social functions both in an organising and participatory capacity.
70 The Claimant was also expected to deal with issues that arose within her courtyard at any time, including personality clashes, cleanliness issues, noise issues and personal difficulties encountered by residents. She was also expected to deal with any breach of village rules at any time.
71 Following her initial engagement in 1999 the Claimant was again employed on 24 January 2000 for a fixed term until 1 December 2000. The terms of her contract were essentially the same as they had previously been, as were her duties, except that duty rosters commenced at 4.30 pm instead of 5.00 pm, and as from October 2000 she was not required to work during the day of any roster that fell on a public holiday. Her roster on such days commenced at 4.30 pm.
Determination
Onus and Standard of Proof
72 The Claimant bears the onus of proving her claims on the balance of probabilities. In that regard she must satisfy the Court that each and every claim particularised is made out. Of course the Respondent does not bear any legal burden.
Issues
73 It is not in dispute that the 1997 and the 2000 EBAs governed the employment of the Claimant. However, what is in dispute is whether or not the Claimant was remunerated in accordance with the agreements for the hours she actually worked. Accordingly the Claimant needs to establish what the applicable rate of pay was and that the employer did not pay her at least as much as she was entitled to receive under the certified agreements for the hours worked.
Classification
74 One of the critical issues to be determined is the Claimant’s rate of pay pursuant to the EBAs.
75 In short the Respondent says that the Claimant is to be regarded as a Level 2 worker whereas the Claimant says that she was a Level 5 worker. In my view there can be no doubt that the Claimant was employed on the basis that she was a Level 5 worker. Her employment agreement (exhibit 6) states that. Indeed her rate of pay referred to in the contract of employment is consistent with that referred to in Schedule A of the 1997 EBA. The pay slips (exhibit 15) also reflect the fact that the Claimant was paid at that level during the course of her employment. Notwithstanding that, the Respondent now seeks to resile from the position to which it agreed. In my view the Respondent cannot resile from the classification to which it agreed. In any event I take the view that the Claimant’s responsibilities are more in keeping with a Level 5 classification than a Level 2 classification.
76 In that regard I prefer the submissions made on behalf of the Claimant to those made by the Respondent. Exhibit 6 serves as an express recognition by the Respondent of the proper classification. The fact is that not only did the Respondent appoint the Claimant at that level but continued to pay her at such. If there were a problem with the classification, one would have expected the issue to come to the fore much earlier. I take the view that it does the Respondent little credit to use its response to this claim as an avenue to resile from the classification to which it agreed. In any event the Claimant’s duties are consistent with the Level 5 descriptors within the EBA particularly given her qualifications, her supervisory responsibilities and the nature of responsibilities. It is for that reason that her employment agreement simply reflects the recognition by the Respondent that the Claimant’s duties were those of a Level 5 employee.
Hours Worked
77 The Claimant says that she worked the hours set out in exhibit 20 for the years 1999 and 2000. The Respondent denies the Claimant’s claims and puts her to the proof on such matters. The Claimant has testified and produced documentary evidence to support her claims. The Respondent has elected not to call evidence. Can the Claimant establish that she worked the hours alleged?
78 The Respondent says that the Claimant’s evidence should be treated with “extreme caution”. It points out that the claim as initially filed was knowingly exaggerated. It was an ambit claim. It accordingly is “a carelessly untruthful grab for as much money as even stretch credibility would permit”. The Respondent says that the Claimant behaved dishonestly in swearing her affidavit of discovery by failing to disclose possession of the original 1999 diary. It is said that if it were not for the diligence of the Respondent the “manifestly bogus” and exaggerated claims would not have reduced as they have.
79 From the outset it must be said that there has been a considerable shift in the quantum claimed. At best, all that can be said is that the original claim filed was carelessly framed. It was clearly an ambit claim. The notion of ambit claims has no place in this jurisdiction. The reality is that the Claimant was never in a position to prove the claim as first filed. Further it is the case that the failure to discover the 1999 diary (exhibit 14) at first instance could have potentially misled the Respondent and the Court. The discovery and production of exhibit 25, being the photocopies of the relevant diary pages containing blocking out, rightly caused the Respondent a great deal of concern and consternation leading to its diligent approach.
80 The Respondent’s view is that the Claimant acted dishonestly and possibly even illegally in her attempt at hiding the truth that might have negatively impacted upon her claim. The Claimant says that she did not act dishonestly and indeed did not intentionally seek to mislead. She says that if the Respondent was mislead then that occurred quite innocently. Her position was that she blocked out certain entries in her diary because they did not relate to her work and further she thought that they were not relevant to her claim.
81 Although the Claimant is an articulate person and possesses academic qualifications, she is not a lawyer. Sometimes people such as the Claimant do not read documents carefully enough or alternatively fail to treat documents with the importance they deserve. In this case it is obvious that had she read the affidavit of discovery carefully and considered its importance, ensuring that the contents of the affidavit were true and correct, she would not have executed the affidavit in the form that she did. In that regard it was incumbent upon her legal adviser to ensure that the Claimant understood what she was doing and to ensure that the Claimant was aware of the importance of the accuracy of the information that she gave under oath. I fear that may not have occurred. I say that because I believed the Claimant when she told me that she did not intend to mislead. The Claimant, in my view, came across honestly in the witness box. She was ready to make concessions when she needed to and simply gave the best evidence that she could. Although on one view it could be said that the circumstances surrounding discovery is demonstrative of dishonest or even illegal conduct, I am of the view that it does not in this instance. I accept that the blocking out was genuine and occurred as a result of the Claimant simply not wanting others to be privy to personal details, which she felt, were not pertinent to the case. It was incumbent on her legal representative to alert the Claimant to the potential problem caused by the blocking out. It appears that may not have been done.
82 Although I do not find that the Claimant acted dishonestly or illegally, it remains the case that the 1999 diary presents particular difficulty for her in so far as it is used as the foundation of her claims. In so far as exhibit 20 is based on what is contained in the 1999 diary it cannot be established on the balance of probabilities that exhibit 20 is factually accurate. The diary constitutes a record of appointments that she made and which she may or may not have kept. The diary was clearly written prospectively in anticipation of events that may or may not have occurred. It cannot be relied upon to establish that anything did happen. The cross-examination of the Claimant concerning perceived inconsistencies between the diary and exhibit 20 is demonstrative of that. The Claimant does not have a specific recollection of each day the subject of her claim. She cannot say which of the events indicated in her 1999 diary actually took place. The duty rosters (exhibit 7) do not assist the Claimant in augmenting her diary entries because in the end she conceded that rosters were swapped and accordingly she cannot now say that on any given rostered day that she worked on that appointed day.
83 It is argued for the Claimant that the difficulty in being able to prove days and hours worked results from the employer’s non-compliance with Regulations 131A, 131B, 131D and 131E of the Workplace Relations Regulations 1996 (the Regulations). It is said that had the employer kept such records the Claimant’s position would not have been so difficult. In submissions Counsel for the Claimant said at page 332 of the transcript:
“The position was, those records weren’t kept and therefore the applicant has had to essentially reconstruct as best one can what work was done during the 2 years that she worked for the respondent as a residential co-ordinator.”
84 In my view whether or not the Respondent has complied with the Regulations is not an issue to be determined in this matter. If it has not complied, the Respondent may be the subject of action for non-compliance that might, if successful, subject it to penalties. Those penalties often reflect the difficulties arising from employees not being able to establish their claims.
85 Having said that, the fact that there may have been a failure to keep appropriate records as required by the Regulations does not mean that the bar is lowered. The onus still remains with the Claimant to prove her case to the appropriate standard. Close enough is not good enough. It is not appropriate for the Claimant to reconstruct events as best she can. She is required to satisfy the Court that for each day claimed she worked the days and hours alleged. For the reasons previously stated neither the 1999 diary entries nor the duty rosters enable her to support aspects of her claims and to prove the same on the balance of probabilities.
86 Having said that, it is not to say that the Claimant cannot establish all of her allegations concerning the days and hours worked. Indeed when one has regard for the Claimant’s evidence as supported by the documentary evidence contained in exhibits 9 and 26 findings can be made that the Claimant worked on certain days. That aligned with other evidence permit findings on the balance of probabilities that she worked certain hours on those days
87 Exhibit 9 comprises job summaries for some of the days worked in 1999 together with photocopies of the 2000 village diary (exhibit 23). So far as the 2000 diary is concerned the Respondent says that the diary does no more than to provide evidence about things alleged to have occurred as documented during the time that the Claimant was the duty Resident Co-ordinator. On the other hand the Claimant submits that the village diary, when considered with the duty rosters and the Claimant’s evidence is strongly suggestive that the Claimant worked those hours provided that I can be satisfied that she worked those particular days. That finding, it is said, could be made in light of the fact that the Claimant worked set hours. It follows that the Court could infer that the Claimant worked her usual hours on those days. I agree with that submission. It follows therefore that I find that the Claimant worked the days to which exhibits 9 and 26 refer. She cannot, however, (for the reasons previously given) prove that she worked on the other days she claims to have worked. In so far as I accept that she worked on the days referred to in exhibit 9 it can be inferred that she worked for the hours set out in exhibit 20. I am also satisfied, based on the oral testimony given as supported by exhibit 26 that the Claimant attended the residential staff weekend held at Point Peron on 5 and 6 February 2000. Notwithstanding that, the Claimant has not been able to establish that she was not paid for her attendance at Point Peron.
88 I will set out in table form at the end of these reasons the days and hours that I find the Claimant has established that she worked.
“Standby”, “On Call” or “Availability”
89 It is the case that the Claimant retained the 6555 telephone following every rostered duty. It is also the case that she responded to calls for assistance outside of her rostered duty time. I accept the Claimant’s evidence in that regard. Indeed the fact that she attended to call outs following her rostered duty is supported by exhibit 9. There are many illustrations of call outs found within that exhibit. Accordingly I find, as previously stated, that the Claimant kept a duty telephone following her rostered shift to respond to calls. She did so in order to comply with her understanding of her requirements as set out in exhibit 17 and in order to ensure the safety of students, which was her primary responsibility. Mr Samuelu’s evidence supports the fact that safety was a major issue of concern. Indeed there can be no doubt that the Claimant was of the view that she was required to be available to respond to all calls from the end of the duty roster to the time that she handed back the mobile telephone on the next morning. The Claimant remained at her place of employment at the conclusion of her duty hours and was immediately available. The Claimant responded to calls out of hours on a regular basis. I will return shortly to consider whether the Claimant’s availability enables her to claim payment pursuant to the out of hours contact clause.
Application of EBAs to the Employment Contract
90 There is no dispute that the relevant scope clauses of the EBAs cover both the Claimant and the Respondent. Accordingly the terms of the EBAs govern the pay rates applicable to the Claimant for the work she performed. It is not the case that the Claimant’s remuneration could be packaged so as to achieve reasonable remuneration. Any attempt to do so amounts to contracting out of the EBAs. Further it cannot be said that the agreement between the Claimant and the Respondent constituted a Flexible Remuneration agreement pursuant to clause 40 of the 1997 EBA because the strict requirements as to form have not been complied with.
91 It is the case that the Claimant carried out her duties in a way that permitted and enabled her to attend to her own personal requirements whilst on duty. That was only subject to her carrying out certain tasks at certain times. She also had to necessarily respond to student needs when required. Accordingly the time spent on duty constituted the carrying out of work during such time. In that regard I accept that I should follow the approach enunciated in The Hospital Employees Industrial Union of Workers, WA v The Proprietors, Lee-Downs Nursing Home (1977) 57 WAIG 455 at 455-456.
92 Clause 18 of the 1997 EBA governed the hours of work. The ordinary hours of work pursuant to the 1997 EBA are between 6.00 am and 7.00 pm Monday to Friday. The same clause sets out that those hours are to be considered ordinary hours except where a worker is a shift worker or where the Respondent and the relevant union had agreed to flexible hours. There is in this instance no evidence that the union agreed to any such arrangement. Furthermore it will be obvious that the Claimant could not be considered to be a “shift worker” within the meaning of clause 45 of the 1997 EBA. A “shift worker” is defined in clause 5 of the 1997 EBA to mean:
“an employee designated as such.”
93 In that regard there is simply no evidence before the Court that the Claimant was designated as such. Further that could not be inferred.
94 It seems to me that it necessarily follows that the hours worked after 7.00 pm on Mondays to Fridays together with the hours worked on weekends and public holidays were hours worked outside the normal spread of hours. They could quite conceivably attract overtime rates pursuant to clause 43 of the 1997 EBA. There can be no doubt that the Claimant was not paid at overtime rates for working outside of normal hours whilst rostered for duty. Notwithstanding that the Claimant seems to have taken the view that she was appropriately paid at ordinary rates for working outside of ordinary hours when rostered. Indeed there is no claim in exhibit 20 for the payment of overtime whilst working outside of normal hours when carrying out rostered duty. There also seems to be an implicit acceptance of that in the written submissions received. Why that is so is not readily apparent. Given that that issue was not argued and is not in contention I simply leave it alone. It follows in those circumstances that it would not be appropriate to make any finding with respect to the payment of overtime for hours worked whilst on duty outside of normal hours.
95 It is submitted by the Claimant that the hours she remained available and worked following her rostered duty should have been paid to her pursuant to clause 44 of the 1997 EBA (the “out of hours” contact clause). Subclause (1) thereof identifies three different categories of out of hours duty being “Standby”, “On call” and “Availability”. In that regard the Claimant says that the definition of “Standby” best suits her particular circumstances. “Standby” is defined to mean:
“ … a written instruction to an employee to remain at the employee’s place of employment during any period outside the employee’s normal hours of duty, and to perform certain designated tasks periodically or on an ad hoc basis. Such employee shall be provided with appropriate facilities for sleeping if attendance is overnight, and other personal needs, where practicable.”
96 The Claimant says that she remained on the premises of the student village and was immediately available from the end of the duty roster until 8.30 am on weekday mornings or until 9.00 am on weekends or public holidays. Indeed the fact that she lived at the village facilitated that. Further it is the case that she did, during such times, perform certain designated tasks and did so on an ad hoc basis. I accept her evidence in that regard. Mr Samuelu’s evidence is also supportive of her contention in that regard. Accepting that each of those factors would otherwise bring her within the definition of “Standby”, the pivotal question remaining is whether there is evidence before the Court that would enable a finding to be made that she received the requisite “written instruction”. The answer is no. There is no evidence of any specific written instruction in that regard. Indeed no such document has been produced. In so far as the Claimant’s duty statement (exhibit 7) could be said to constitute a written instruction it will be obvious that there is no specific instruction to the Resident Co-ordinator that he or she is to remain on “standby”. Could it be inferred from the duty statement or position description that the Claimant was required to be on “standby”? In my view the answer is in the negative because the requirement to be an emergency contact person as is stated in those documents falls within the confines of the duty hours performed in accordance with the after hours duty roster. Accordingly the Claimant has not established as is required, that there was a “written instruction” from the employer that she be on “standby”. Similarly any requirement for her to be “on call” or otherwise “available” within the meaning of clause 44(1) of the 1997 EBA also requires a “written instruction”. In the absence of proof of any written instruction the Claimant cannot establish her claims for payment for being on standby, on call or otherwise available.
97 The Claimant suggests that the duty rosters (exhibit 7) posted on the notice board can constitute a written instruction to be on standby. With respect I do not agree. That certainly cannot be said of the 1999 rosters. They indicate that after hours assistance was available by calling the Duty Co-ordinator “during duty hours”. The 2000 rosters, which changed in format from the 1999 rosters, do not specifically instruct the Duty Co-ordinator to remain available after hours. Further it could not be inferred from the rosters that the co-ordinators were to remain available outside of the duty hours. It will be seen that the instruction to contact the duty officer is one aimed at residents and, in any event, relates to contact made concerning certain events occurring within the RSO’s hours.
Introduction of the 2000 EBA – 1 October 2000
98 The Claimant submits that the hours worked pursuant to the duty roster changed in characterisation because of the introduction of the 2000 EBA effective 1 October 2000. The 2000 EBA contained a new definition of shift worker. In clause 8 thereof “Shift worker” is defined as follows:
“Shift Worker” means an employee who is required to work rostered hours of duty, in accordance with the Shiftworker or Security Officer provisions of clause 19 - Hours.
99 That change, it is argued, removed the necessity for an active designation of an employee to shift work. The Claimant argues that she accordingly became a shift worker from 1 October 2000 having regard for clauses 19 and 43 of the 2000 EBA. I reject that argument. There is no evidence to support the contention that the Claimant was required to work rostered hours of duty in accordance with the clause 19 shift workers provisions. The shift workers provisions simply have no applicability to the Claimant. It is the case that the Claimant does not fall within the provisions of clause 19(8) which provides:
(8) The ordinary hours of duty for shift workers shall be 75 per fortnightly roster period to be worked in not more than 10 shifts each not exceeding 10.5 hours duration (exclusive of meal breaks) on any of the days of the roster period; provided that no employee shall be rostered for more than six (6) consecutive days in any roster period.
100 The onset of the 2000 EBA did not result in any change so far as the Claimant is concerned.
Meal Breaks
101 Finally there was some suggestion by the Respondent that the Claimant was not entitled to be paid for periods when she had a meal break. The evidence dictates, however, that the Claimant did not at any stage have a “meal break” as opposed to “a meal” whilst on duty. It is not the case that she went off duty for half an hour to have a meal. The fact is that she remained on duty for the full period of her duty roster and accordingly was entitled to be paid for such.
Conclusion
102 The Claimant has only been able to prove that she worked the days and hours set out in the schedules hereto. However that does not assist her in this matter given that she is not claiming payment at overtime rates for those hours worked, whilst on after hours rostered duty, outside of the normal spread of hours. In all other respects she has not proved her claim.
103 Having stated my conclusion, I feel compelled to comment that, in my view, the 1997 and 2000 EBAs have little, if any, applicability to the conditions of employment of the Claimant. It is readily apparent that the Respondent has adopted the EBAs to determine the level and rate of pay of the Claimant but in most other respects such as the spread of ordinary hours, overtime and out of hours contact, the agreements are simply not apposite. In the circumstances its may have been better and in the best interests of both parties to fully express the conditions of employment in a document that could have been registered as an individual agreement under the relevant legislation or alternatively have the EBAs varied so as to include the particular circumstances of the Resident Co-ordinators.
G Cicchini
Industrial Magistrate
SCHEDULE 1999
DAY
DATE
HOURS
NORMAL
HOURS OUTSIDE NORMAL SPREAD
Monday
20 September
6 hours
5.00 pm to 11.00 pm
2 hours
5.00 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Saturday / Sunday
25/26 September
16.5 hours
8.30 am to 1.00 am
Nil
16.5 hours
Tuesday
28 September
6 hours
5.00 pm to 11.00 pm
2 hours
5.00 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Tuesday
5 October
6 hours
5.00 pm to 11.00 pm
2 hours
5.00 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Sunday
10 October
13 hours
10.00 am to 11.00 pm
Nil
13 hours
Friday
15 October
8 hours
5.00 pm to 1.00 am
2 hours
5.00 pm to 7.00 pm
6 hours
7.00 pm to 1.00 am
Monday
25 October
6 hours
5.00 pm to 11.00 pm
2 hours
5.00 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Saturday / Sunday
30/31 October
16.5 hours
8.30 am to 1.00 am
Nil
16.5 hours
Sunday
31 October
13 hours
10.00 am to 11.00 pm
Nil
13 hours
Thursday
4 November
6 hours
5.00 pm to 11.00 pm
2 hours
5.00 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Tuesday
9 November
6 hours
5.00 pm to 11.00 pm
2 hours
5.00 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Friday
12 November
8 hours
5.00 pm to 1.00 am
2 hours
5.00 pm to 7.00 pm
6 hours
7.00 pm to 1.00 am
Sunday
14 November
13 hours
10.00 am to 11.00 pm
Nil
13 hours
Monday
15 November
6 hours
5.00 pm to 11.00 pm
2 hours
5.00 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Monday
22 November
6 hours
5.00 pm to 11.00 pm
2 hours
5.00 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Monday
29 November
6 hours
5.00 pm to 11.00 pm
2 hours
5.00 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
SCHEDULE 2000
DAY
DATE
HOURS
NORMAL
HOURS OUTSIDE NORMAL SPREAD
Saturday
5 February
13 hours
(8.30 am to 9.30 pm
Nil
13 hours
Sunday
6 February
5.5 hours
(10.30 am to 4.00 pm
Nil
5.5 hours
Tuesday
15 February
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Sunday
20 February
13 hours
10.00 am to 11.00 pm
Nil
13 hours
Friday
25 February
8.5 hours
4.30 pm to 1.00 am
2.5 hours
4.30 pm to 7.00 pm
6 hours
7.00 pm to 1.00 am
Monday
28 February
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Wednesday
1 March
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 11.00 pm
4 hours
7.00 pm to 11.00 pm
Monday
6 March
(Public Holiday)
14.5 hours
8.30 am to 11.00 pm
Nil
14.5 hours
Saturday
11 March
15 hours
10.00 am to 1.00 am
Nil
15 hours
Tuesday
21 March
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Sunday
26 March
13 hours
10.00 am to 11.00 pm
Nil
13 hours
Thursday
30 March
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Friday
31 March
8.5 hours
4.30 pm to 1.00 am
2.5 hours
4.30 pm to 7.00 pm
6 hours
7.00 pm to 1.00 am
Monday
10 April
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Saturday / Sunday
15/16 April
15 hours
10.00 to 1.00 am
Nil
15 hours
Thursday
20 April
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Tuesday
25 April
(Public Holiday)
14.5 hours
8.30 am to 11.00 pm
Nil
14.5 hours
Sunday
30 April
13 hours
10.00 am to 11.00 pm
Nil
13 hours
Friday / Saturday
5/6 May
8.5 hours
4.30 pm to 1.00 am
2.5 hours
4.30 pm to 7.00 pm
6 hours
7.00 pm to 1.00 am
Wednesday
10 May
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Monday
15 May
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Saturday / Sunday
20/21 May
15 hours
10.00 am to 1.00 am
Nil
15 hours
Thursday
25 May
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Tuesday
30 May
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Sunday
4 June
13 hours
10.00 am to 11.00 pm
Nil
13 hours
Wednesday
14 June
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Friday / Saturday
16/17 June
8.5 hours
4.30 pm to 1.00 am
2.5 hours
4.30 pm to 7.00 pm
6 hours
7.00 pm to 1.00 am
Monday
19 June
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Saturday / Sunday
24/25 June
16 hours
9.00 am to 1.00 am
Nil
16 hours
Thursday
29 June
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Monday
3 July
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Sunday
9 July
15 hours
8.00 am to 11.00 pm
Nil
15 hours
Friday / Saturday
14/15 July
8.5 hours
4.30 pm to 1.00 am
2.5 hours
4.30 pm to 7.00 pm
6 hours
7.00 pm to 1.00 am
Wednesday
19 July
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Monday
24 July
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Saturday / Sunday
29/30 July
10.5 hours
2.30 pm to 1.00 am
Nil
10.5 hours
Thursday
3 August
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Tuesday
8 August
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Sunday
13 August
14 hours
9.00 am to 11.00 pm
Nil
14 hours
Friday / Saturday
18/19 August
8.5 hours
4.30 pm to 1.00 am
2.5 hours
4.30 pm to 7.00 pm
6 hours
7.00 pm to 1.00 am
Monday
21 August
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Monday
28 August
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Saturday / Sunday
2/3 September
16 hours
9.00 am to 1.00 am
Nil
16 hours
Thursday
7 September
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Tuesday
12 September
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Sunday
17 September
14 hours
9.00 am to 11.00 pm
Nil
14 hours
Saturday / Sunday
23/24 September
16 hours
9.00 am to 1.00 am
Nil
16 hours
Wednesday
27 September
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Monday
2 October
(Public Holiday)
6.5 hours
4.30 pm to 11.00 pm
Nil
6.5 hours
Saturday
7 October
7.5 hours
9.00 am to 4.30 pm
Nil
7.5 hours
Thursday
12 October
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Tuesday
17 October
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Friday / Saturday
27/28 October
8.5 hours
4.30 pm to 1.00 am
2.5 hours
4.30 pm to 7.00 pm
6 hours
7.00 pm to 1.00 am
Wednesday
1 November
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Monday
6 November
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Saturday / Sunday
11/12 November
16 hours
9.00 am to 1.00 am
Nil
16 hours
Thursday
16 November
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Tuesday
21 November
6.5 hours
4.30 pm to 11.00 pm
2.5 hours
4.30 pm to 7.00 pm
4 hours
7.00 pm to 11.00 pm
Sunday
26 November
14 hours
9.00 am to 11.00 pm
Nil
14 hours
100422709
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT
PARTIES JANET DEVENY-SALMON
CLAIMANT
-v-
MURDOCH UNIVERSITY
RESPONDENT
CORAM MAGISTRATE G CICCHINI IM
DATE THURSDAY, 22 APRIL 2004
CLAIM NO M 29 OF 2003
CITATION NO. 2004 WAIRC 11382
_______________________________________________________________________________
Representation
Claimant Mr G Stubbs (of Counsel) instructed by Messrs Dwyer Durack Lawyers
Respondent Mr S Heathcote (of Counsel) instructed by Messrs Clayton Utz Lawyers
_______________________________________________________________________________
Reasons for Decision
Background
1 The Claimant is fifty-one years of age. In 1993 she commenced undergraduate studies and completed a Bachelor of Science Degree course at Curtin University of Technology. The following year she completed a Bachelor of Psychology course at the same university. In 1998 she commenced a Master of Applied Psychology Degree course at Murdoch University, which she has completed on a part-time basis. In 1999 during the period of her postgraduate studies at Murdoch University the Claimant’s attention was drawn to an advertisement placed on a notice board at the university by the Respondent seeking the services of a person to perform the duties of a Resident Co-ordinator at the Murdoch Student Village. The notice described both the nature of the position and criteria for appointment. It stated inter alia as follows:
RESIDENT COORDINATOR
VACANCIES IN 1999 AT STUDENT VILLAGE
Student Village is a Murdoch University residential college that caters for approximately 520 undergraduate and postgraduate students, and visiting academics from many different backgrounds and cultures, in self-catering flats.
It is the aim of Student Village to provide for its residents a community environment that is conducive to the achievement of academic excellence, personal development and a positive lifestyle. Five Resident Coordinators will be appointed to the Village staff in 1999 to assist the Village to achieve this aim. Each of the Resident Coordinators will be assisted by two Resident Assistants.
RESPONSIBILITIES
Provide assistance to the Assistant Director Residential by:
1. being responsible for a section of the Village housing approximately 100 residents
2. supervising residents to maintain their flats; approximately 20 flats
3. training and supervising two Resident Assistants
4. providing pastoral care and academic development of residents
5. implementing Village policies and rules
6. conducting check ins/outs and flat inspections each semester
7. maintain comprehensive records
8. act as Building Warden for the purposes of the University's Emergency Evacuation Procedures. Coordinators to provide a written report each time there is an incident .
CRITERIA FOR SELECTION
Applicants should:
1. be a postgraduate student or a member of the teaching staff of Murdoch University in 1999
2. have proven interpersonal and group leadership skills
3. be effective as a team member
4. have empathy with students from different cultural backgrounds.
A detailed Duty Statement for Resident Coordinators can be obtained from the Student Village Housing office by phoning 9360 2909 or calling at the Village Housing office (Building #32).
2 In furtherance of her enquiries concerning the position the Claimant, on 11 June 1999, downloaded a page from the Respondent’s website concerning the position. The web page contained more specific information about the position including further details concerning the duty statement, criteria for selection, remuneration and the like. It is appropriate that I set out the relevant parts of the web page:
Headline: Vacancy - STUDENT VILLAGE
Summary: RESIDENT COORDINATOR - Murdoch staff or postgraduate students only to apply
(Closing date 14 June 99)
Details: VACANCIES IN 1999 AT STUDENT VILLAGE
FIXED TERM APPOINTMENTS (PART TIME)
Student Village is a Murdoch University residential college that caters for approximately 520 undergraduate and postgraduate students, and visiting academics from many different backgrounds and cultures, in self-catering flats.
It is the aim of Student Village to provide for its residents, a community environment that is conducive to the achievement of academic excellence, personal development and a positive lifestyle. Due to the resignation of one of our residential staff members, a Resident Coordinator position for Semester 2 is now available and will commence 5 July 1999.
DUTY STATEMENT
Under the leadership of the Assistant Director (Residential) the Resident Coordinator will:
1 Maintain acceptable standards of community living in Student Village, especially in regard to levels of noise and cleanliness
2 Provide primary pastoral care to the residents of Student Village
3 Support the maintenance of the physical assets of Student Village
4 Promotion of social interaction among residents of Student Village
(Resident Coordinators are assisted by two Resident Assistants.)
CRITERIA FOR SELECTION
The successful applicants will:
1. be a postgraduate student or a member of the teaching staff of Murdoch University in 1999
2. have proven interpersonal and group leadership skills
3. have ability to work as part of a team and maintain effective working relationships with a broad range of people
4. have empathy with students from different cultural backgrounds
5. be available to work flexible hours without supervision
6. be a good role model for residents and to positively contribute to the overall running of the Village.
APPOINTMENT
The Resident Coordinator position is for one semester (from 5 July to
4 December 1999) and the appointee is required to reside at Student Village during this period. Training will be negotiated with the successful applicant and he/she will be eligible to apply for re-appointment the following year.
REMUNERATION
The Resident Coordinator will be paid on a part-time fixed term contract for 22 weeks at $489.39 per fortnight plus membership to Tertiary Education Superannuation Scheme. A separate two bedroom furnished flat is provided for at weekly rental of $97.00 inclusive of water, electricity and gas, and modem access.
3 It suffices to say that the Claimant made her application for the position, was interviewed and was successful in attaining the same. On 22 June 1999 the Respondent wrote to the Claimant informing her that she had been successful in her application. She was informed that her employment was to be for one semester from 5 July to 4 December 1999 and that she was expected to reside in the Student Village during that period. She was further informed that her remuneration would be based on a part-time fixed term contract for 22 weeks at $489.39 per fortnight. A separate three bedroom furnished flat was to be provided for a weekly rental of $97.00 inclusive of water, electricity, gas and modem access.
4 The Claimant accepted the offer of employment and on 29 June 1999 signed a contract of employment. The contract of employment adopted the terms and conditions of the Murdoch University General Staff Enterprise Agreement 1997 (1997 EBA). The contract of employment specified that the Claimant’s classification was H0505 on salary step 10. Her weekly hours were designated to be 13.88 comprising 37% of a full time position.
5 The contract contained a statement detailing her major duties. It provided inter alia:
THE CONTENTS OF THIS STATEMENT MAY BE VARIED ONLY WITH THE APPROVAL OF THE DIRECTOR HUMAN RESOURCES
|
Duty No. |
Summary of Duties |
Frequency |
% of total time |
|
|
Under the leadership of the Assistant Director (Residential) the Resident Coordinator will: |
|
|
|
1. |
Maintain acceptable standards of community living in Student Village, especially in regard to levels of noise and cleanliness. |
|
50% |
|
2. |
Provide primary pastoral care to the residents of Student Village. |
|
25% |
|
3. |
Support the maintenance of the physical assets of Student Village. |
|
20% |
|
4. |
Promote social interaction among residents of Student Village. |
|
5% |
6 The Claimant carried out her duties in accordance with the terms of her contract of employment through to the end of the second semester in 1999 at which time the contract ended. She subsequently re-applied for the position for the 2000-year and was successful in that regard. Her 2000 contract commenced on 31 January 2000 and expired on 4 December 2000. The terms and conditions of employment were set pursuant to the 1997 EBA until on or about 1 October 2000 at which time the Murdoch University (General Staff) Enterprise Bargaining Agreement 2000 (2000 EBA) took over.
The Claim
7 The Claimant alleges that despite the contractual obligations requiring her to work 13.88 hours per week she was in fact required to work substantially more hours than those stated in the contract. Her 1999 contract contemplated the 13.88 hours being worked on duty roster every 5 days. The roster varied in length between 5.00 pm to 11.00 pm on Monday to Thursday, 5.00 pm to 1.00 am on Friday, 8.30 am to 1.00 am on Saturday and 8.30 am to 11.00 pm on Sunday. The Claimant says that above and beyond the roster she was also required to do the following:
(i) complete substantial training at the commencement of the employment, including a three day team building exercise at Rockingham;
(ii) supervise and facilitate the students moving into the Student Village and signing their residency contract at the commencement of each semester ("Check-Ins");
(iii) hold an initial flat meeting at the commencement of each semester in each flat;
(iv) attend a Student Village Orientation day at the beginning of each semester;
(v) carry out regular flat inspections;
(vi) hold an initial individual interview with each student;
(vii) attend weekly Residential Staff meetings;
(viii) attend and complete ongoing emergency training;
(ix) organize and attend various Student Village functions and activities including sports' days, parties/dinners and dances;
(x) be on stand-by at the end of each Roster and respond to any telephone complaints and/or requests for help. This stand-by period commenced at the end of the Roster and continued until 8:30am the following day;
(xi) return the duty telephone and Student Village keys to the Residential Staff Office at the completion of the stand-by period; and
(xii) facilitate the vacation of the Student Village ("Check-Outs") by students at the end of or during each semester, including inspecting bedrooms, common areas and through levying cleaning charges.
8 The Claimant says that notwithstanding the provisions of the EBAs she was not remunerated for hours worked outside the base roster. Indeed she was only remunerated for the rostered hours at ordinary rates despite most of the roster falling outside the definition of “Ordinary Hours” as defined by the EBA.
9 Her situation in 2000 was almost the same save that:
(i) the weekly rosters commenced at 4.30 pm instead of 5.00 pm,
(ii) the initial meeting with each student at the beginning of each period of residence was incorporated into the check-in, and
(iii) A higher hourly rate was payable on or after about 1 October 2000 in accordance with the 2000 EBA.
10 The Claimant maintains that the Respondent has failed to pay her in accordance with the 1997 and 2000 EBA. In that regard she claims she was not paid the correct rate for working outside ordinary hours and that she was not paid for overtime worked. It follows accordingly that she claims not to have been paid the correct pro-rata annual leave.
11 The Claimant says that she has been underpaid a total of $18,604.97 exclusive of the annual leave underpayment. The alleged annual leave underpayment has not been quantified. The amount sought represents a scaled down amount compared to the amount of $36,929.90 originally sought in the claim as filed on 21 February 2003.
Response
12 In its particulars of defence filed on 11 July 2003 the Respondent has set out the co-ordinators’ responsibilities. It is appropriate to repeat the relevant paragraphs thereof:
Co-ordinator's responsibilities
Each of the Co-ordinators is allocated, according to a roster, to various periods during each week in which they act as the primary contact for Residents in need of out of hours support. The rosters typically require the Co-ordinator to be available to be called over a span of approximately 16 hours during 1 week day and for up to 24 hours on a Saturday or Sunday.
The Co-ordinators were not always required to personally respond to a Resident's call for support. During certain hours designated by a roster, the Co-ordinators had access to one or more Assistants to who calls were referred for action.
The Co-ordinator was only required to personally respond to calls for support that occurred, essentially during the hours in which the Residents would be expected to be asleep.
The Co-ordinator's role typically required the Co-ordinator to:
(a) collect keys and a mobile phone from either, the Respondents regular employees or the Coordinator rostered for the preceding period;
(b) unlock buildings and facilities that were commonly available to the Residents;
(c) meet with the Assistants they would call upon for assistance that day;
(d) hand out any sporting equipment or other property the Village made available for the Resident’s use;
(e) remain available to be contacted by a Resident and to arrange for support to be provided;
(f) lock up common areas at the end of the day;
(g) enforce the Village's curfew requirements;
(h) remain available to provide support to a Resident if called upon; and
(i) return the keys and mobile phone to either, the Respondent's regular employees or to the Coordinator rostered to be on-call during the next period.
In all, the specific tasks the Co-ordinator was required to perform occupied the Co-ordinator for approximately 2 hours. The balance of the time could be spent as the Co-ordinator wished so long as that was consistent with the Co-ordinator being available to arrange support for a Resident or to personally support a Resident if called upon to do so.
The creation of the Village Office in 2000 meant that, during hours when the Assistants were available, the office became the Residents' primary contact point and the Co-ordinators only needed to be contacted when a matter arose that an Assistant could not resolve.
Apart from the responsibilities set out in (the) paragraph … above, the Co-ordinators were also required to assist the Respondent's regular employees with:
(a) checking-in the Resident's at the beginning of the academic year; and
(b) checking-out the Residents at the end of the academic year.
The Co-ordinators were also required to:
(a) attend some training programmes; and
(b) assist with, and attend, social functions organised for the Residents.
13 The Respondent says that the Claimant was paid an annual salary equivalent to 37% of a full-time salary set notionally at level 5 within the pay structure in both the 1997 and 2000 EBA. The all-up salary was based on an aggregation and time that the Claimant might be expected to work in relation to:
(a) check-in for incoming Residents;
(b) attending training as required;
(c) assisting with, and attending, social functions organised for the Residents;
(d) attending to routine opening up and locking up tasks;
(e) remaining available during specified periods for contact by Residents who are in need of out of hours support;
(f) arranging for Assistants to provide support to Residents as required;
(g) providing direct support to Residents as required; and
(h) check-out for departing Residents.
14 The Respondent points out that the Claimant’s yearly salary was averaged out so that the Claimant received the same salary each fortnight as an all inclusive amount in satisfaction of the Respondent’s obligation to remunerate the Claimant for the hours worked and her on-call responsibilities. It says that the payments it has made to the Claimant as salary have satisfied the financial obligation it has to the Claimant arising from both the 1997 and 2000 EBA in relation to her work as a co-ordinator. It accordingly denies it has breached the relevant certified agreements as alleged and denies that the Claimant is entitled to the relief sought.
Claimant’s Evidence Concerning Her Duties
15 The Claimant testified that she was appointed as the Resident Co-ordinator responsible for about 100 students and 20 flats in the Banksia Courtyard. There were also other Courtyards, which, together with Banksia, formed the Murdoch University Student Village. There was one supervisor who oversaw the operations of the village as a whole. Each courtyard had its own co-ordinator assisted by two Resident Assistants (RA’s) who were engaged to help the co-ordinators in their duties. The RA’s were undergraduate students living at the village who were compensated for their work.
16 The Claimant said that she was, in the performance of her duties, always accessible by telephone or e-mail. Indeed her unit was necessarily structured in such a way that one of the bedrooms was dedicated as an office for such purposes. The office was used to facilitate contact by the co-ordinator with internal and external agencies concerning student needs.
17 The Claimant testified that when first appointed she did not take part in any induction course but rather was assisted in finding her feet by other co-ordinators and RA’s. She did however at the commencement of the 2000 employment year take part in an induction program. She had however attended a Suicide Prevention Seminar in 1999. She explained that many of the residents first joining the village were overseas or country students who were away from their homes for the first time. Consequently there was a need to ensure that those students feeling lonely and homesick had support. Pastoral care was a significant component of the job.
18 A student arriving at the village needed to be “checked-in”. That involved the co-ordinator attending to the relevant paperwork, taking the student to the flat, inspecting the flat, completing an inspection sheet and handing over the keys. The co-ordinator would introduce the new student to other student residents and also become involved in the preparation of a cleaning roster for the flat. Each flat comprised anywhere between three and eight bedrooms. Each student paid rent for his or her bedroom and was responsible for cleaning communal areas.
19 Other duties performed by the Claimant with the assistance of RA’s included attending to security checks of the grounds, ensuring that parties ended by a reasonable time, that lights were out and so on. Noise complaints would be attended to. Any noisy party would be broken up. Drunken students would be dealt with and, if necessary, stereo equipment turned off. The Claimant attended to break downs, power failures and the like. She was also involved in the planning of social and sporting events for the particular courtyard and the village overall. She was required to carry out flat inspections and give notice of the same. Her duties accordingly varied from week to week.
20 At the commencement of each rostered shift the Claimant was required to pick up from the Residential Staff Office (RSO) a set of keys and also a mobile telephone referred to as “the 6555 phone”. Students would routinely call her on that number outside of office hours seeking assistance to get into their flat if they had been inadvertently locked out, to gain access to communal rooms, to obtain sporting equipment and the like. During normal office hours the RSO attended to such matters. The Claimant was responsible for the collection of walkie-talkies from the RSO and was responsible for keeping them in charged state. Walkie-talkies would be given to the RA’s so that the Claimant could remain in contact with them whilst patrolling or carrying out other functions.
21 Apart from being on call and carrying out the other functions hereinbefore described, the Claimant was also required to attend regular weekly meetings involving other co-ordinators and also fortnightly meetings involving the other co-ordinators and all RA’s. Such meetings would take anywhere between one and a half to three hours. The Claimant was also from time to time required to attend flat meetings.
22 The Claimant explained that the co-ordinators and RA’s worked as a team within each courtyard and across the village. Part of their role was to promote social and sporting activity in order to maintain morale. As a consequence the Claimant necessarily became involved in a number of social activities that she assisted to organise including “Mexican nights”, “Popcorn nights”, “Movie nights” and “Quiz nights” and others. She was involved in purchasing food and other necessities for such functions as well as cleaning up afterwards. There was an expectation that the co-ordinators would support their team and the other co-ordinators in such social activities.
23 The Claimant testified that she maintained a record of what she did in her 1999 personal diary. In 2000 a record of her activities was kept in the 2000 office diary. It is the information contained within those diaries that records the times worked which supports her claim.
24 The Claimant testified that she was on duty from 5.00 pm to 11.00 pm Monday to Thursday, 5.00 pm to 1.00 am on Friday into Saturday morning, 10.00 am Saturday until 1.00 am Sunday morning and later between 10.00 am and 11.00 pm on Sundays. On each Monday public holiday she was required to be on duty from 10.00 am to 11.00 pm whilst on Friday public holidays she was required to remain on duty until 1.00 am.
25 The village was governed by rules that were strictly enforced, particularly prior to exam times. For example, there was a no tolerance policy regarding excessive noise. Further there were regular flat inspections to ensure compliance. Even when off duty, the Claimant felt duty bound to intervene when rules were not being complied with.
26 The Claimant testified that she prepared what now has become exhibit 20. The document is in two parts and is in the form of a spreadsheet outlining both her 1999 and 2000 shift claims. Within the spreadsheet, under the heading “evidence”, she discloses the evidentiary basis for making the claim with respect to each particularised day. She explained that she prepared the spreadsheets from information taken from her 1999 personal diary, from copies of the village diaries and from the village rosters. In that way she was able to reconstruct the days worked, the commencement and finish times of any given shift and the total number of hours worked.
27 She illustrated how the spreadsheet worked by reference to the spreadsheet entry for 15 July 1999. In that regard she said that her 1999 diary disclosed that she had marked off RC (Resident Co-ordinator) meeting between 8.30 am and 10.00 am. The duty roster for the period including that day discloses that she was not on duty that day. Accordingly she concludes that the meeting took place outside of her rostered hours. Another illustration is provided by reference to the entry for 18 July 1999. The spreadsheet indicates that she attended a BBQ and dance that day and worked from 4.00 pm until 1.00 am the following morning. The information in that regard is derived from her personal diary. When the entry is cross-referenced with the duty roster it discloses that her duties that day were outside her rostered hours. Similarly the spreadsheet indicates that on 22 July 1999 the Claimant was on duty and carried out flat meetings. Her personal diary discloses that the meetings took place between 6.00 pm and 8.00 pm and the rosters confirm that she was on duty that day.
28 The spreadsheet entry for 23 July 1999 indicates that the Claimant was on standby. She explained that what that meant was that she was required, following her rostered duty on 22 July 1999, to retain the mobile telephone and keys overnight for call out so that she could render assistance to students in need. Although there is no entry in her diary for 23 July 1999 disclosing that she was on standby, the fact nevertheless remains that a standby situation inevitably followed her rostered duty. With respect to the issue of the standby claims, the Claimant explained that she believed that she was under a duty following the completion of her rostered duty to be on standby until 8.30 am the next morning to attend to student needs. Indeed she did in fact attend to their needs. For example, if the telephone rang at 3.00 am and a student told her that he or she had been locked out, she would necessarily get up out of bed, get dressed and then attend to letting the student in. She said that she did that because,
“… you can’t leave students out at night if they’re locked out. They become quite distressed”.
29 Apart from lockouts she also had to attend to such things as power black outs, electrical circuits tripping, re-igniting hot water systems that had gone off. Accordingly she necessarily had to attend to any village student who needed help after hours. It was the case that whilst on standby the Claimant remained in the village and was readily contactable.
30 The Claimant next referred to the entry in exhibit 20 for 25 August 1999. Relative to that date she wrote within her personal diary “RC/RA meeting” at 5.40 pm. She also made a notation within the diary that a community policing meeting was to be held that evening at 7.00 pm in the recreational room. She said that the RC/RA meetings usually took more than one and a half hours but because the police were attending at 7.00 pm that night she surmised that the particular meeting only took one and a half hours. She estimated that the police meeting then took about two hours.
31 The Claimant then went on to cite other specific examples to demonstrate the process by which she came to make her claim for each day. It suffices to say that the mode adopted remained the same throughout the 1999-year. She said that she necessarily had to undertake that process because her employer failed to provide time sheets that would have enabled her to record the start and finish times of meetings or other activities.
32 The Claimant testified that the situation in 2000 was somewhat different in that she did not maintain a personal diary. Accordingly she does not now have any documentary evidence to support, for example, the amount of time spent doing “check-ins” and “flat meetings” in 2000. In that regard she relies on her memory of the standard practices adopted. Indeed she relies on such in the case for all the entries with respect to those items contained on the spread sheet for the 2000 year leading up to and including 13 February 2000 and for the entries for 22 to 24 February 2000 inclusive. The Claimant accepts that she is unable to establish by use of documentary evidence available to her that she worked on those days. Further she concedes that the hours she allegedly worked are open to dispute. All she can say in that regard is that she knew that she carried out the “check-ins” and attended the “flat meetings” during that period and that the hours claimed have been deduced from her knowledge of work practices and from discussions she has had with other Resident Co-ordinators. In order to substantiate her claims that she attended flat meetings in the early part of 2000 the Claimant produced notes of a RC meeting held on 17 February 2000 in which is recorded that there were to be flat meetings the following Tuesday (22 February) and Thursday (24 February) (see exhibit 10). That supports the fact that there were planned flat meetings for those days. On the strength of that she has made claims for those in exhibit 20. However it is of particular note that she has also made a claim for 23 February 2000 despite the fact that the documentary evidence does not support the same.
33 The balance of the spreadsheet for the 2000-year reflects claims for duty hours worked together with a claim for “standby” payments for periods immediately following those duty hours worked. The Claimant says that the village diary together with other records discovered by the Respondent support her claims in that regard.
34 The Claimant testified that at the end of the 2000-year she was also paid extra for doing “check-outs”. In that regard she was required to keep a record of the hours worked so as to facilitate the extra payment. Further, at the commencement of the 2000-year she was also paid extra for the development of a training program. Additionally she received a subsidised “ball ticket” that year.
35 Cross-examination of the Claimant was lengthy. Indeed she was challenged with respect to most of the entries that she made within the spreadsheet (exhibit 20). With respect to exhibit 20 the Claimant told the Court that the same was compiled from information available to her which supported the entries. She conceded that it is conceivable that if the information used to compile the spreadsheet were wrong then it would follow that the entries themselves would be wrong.
36 When cross-examined the Claimant confirmed that she was required to work 13.88 hours per week and that she would be subject to a duty roster. She said that at the time that she took the job on she believed that she would do all of the work within 13.88 hours on a rostered basis. She also accepts that at the time she understood that social functions would ordinarily take place outside of the allotted 13.88 hours. However notwithstanding that, there was an expectation that she attend social functions outside of those hours. Further she also acknowledged that the RC/RA meetings would usually occur outside of rostered duty time. She was aware that there were duties to be performed outside duty times. She accepted that the duty rosters did not necessarily reflect work for 13.88 hours.
37 The Claimant testified under cross-examination that whilst on duty she did more than just respond to calls and do security checks. During such times she, with the assistance of RA’s, distributed fliers, conducted surveys, conducted quick flat inspections (walkthroughs), attended to necessary paperwork and became involved in counselling and mediation. She also frequently responded to calls made on the 6555 telephone. Those calls occurred both during rostered hours and after such times. She had to necessarily respond to all manner of queries and differing situations.
38 The Claimant was also cross-examined about the accuracy of her claim, as it was when it was first filed. In that regard she agreed with the proposition that her claim represented an “ambit claim for negotiating purposes”.
39 With respect to RC/RA meetings the Claimant conceded that she did not attend all of them but said she was generally expected to attend such meetings. She conceded that she was not disciplined nor had her pay docked for failing to attend such meetings.
40 She was next taken in cross-examination to consider her diary entries for 1999. In particular she was asked questions concerning the entry for 8 July 1999. That entry indicates that there was to be a Resident Co-ordinators’ meeting held at 5.00 pm. It also indicates that the Claimant was to be at the Regal Theatre at 6.00 pm. It was put to the Claimant that the entries are not consistent with her contention that the RC meetings took an hour and a half. She responded by saying that she would have gone to the Resident Co-ordinators’ meeting but possibly not for the full one and a half hours. Having said that, the Claimant said she could not say whether she actually attended the Regal Theatre on that day at that time. In that regard the Claimant conceded that the entry within the diary cannot be actually relied upon to demonstrate actual performance of any appointment.
41 The Claimant was also taken to consider the entries in the diary for 25 August 1999. They show an entry for a RC/RA meeting at 5.40 pm and a police meeting called for 7.00 pm to discuss the then recent spate of assaults. The entries show that the RC/RA meeting was to commence at 5.40 pm. Notwithstanding that, the Claimant claimed in exhibit 20 that she attended the meeting for one and a half hours commencing at 5.30 pm. In that regard, the Claimant acknowledged that the spreadsheet was obviously erroneous possibly as a result of a typographical error. As to the police meeting that followed, she conceded that she could not recall the exact time that the meeting finished. She said that she only estimated the time of completion of that meeting. She said that she was expected to be at that particular meeting in her capacity as Resident Co-ordinator. She rejected the contention that she attended the meeting merely as an interested party just like all the other residents of the student village. Notwithstanding that she agreed that, given that she was a resident of the village, not everything that she did connected with the village related to her employment.
42 The Claimant was also asked about the requirement that she attend social functions. She acknowledged that she did not attend the student village ball held on 3 September 1999. She said that she was not expected to attend that function because it was not a function held within the student village. The Resident Co-ordinators had nothing to do with its organisation. By contrast the Claimant said that she was expected to attend and did in fact attend the inter-courtyard soccer match held on 19 September 1999. The Claimant was then asked whether she attended a dinner on 21 June 2000. She could not recall whether she had or she had not. She was then shown an e-mail that she sent to a superior indicating that she would not be attending the dinner because of other pressing engagements. She consequently conceded that she had missed that particular social function but agreed that she was not reprimanded for it nor had any pay been deducted for failing to attend. She conceded that she was still paid notwithstanding that she failed to attend some social functions.
43 The Claimant was next taken to compare the photocopies of the 1999 diary entries initially discovered and the original diary subsequently produced. The copy contained certain blocking out. The Claimant said that she blocked out particular entries because they were personal to her and she considered such entries not to be relevant to the matters in dispute. It was put to the Claimant that she wilfully blocked out information that would have cast doubt concerning the accuracy of her claim. In response she said that there was no intention on her part to mislead. Having said that she readily conceded that the blocking out could have conceivably misled the Respondent but maintained that that was not her intent.
44 To illustrate the problem created by the blocking out, the Claimant was taken to consider the spreadsheet attached to the Particulars of Claim filed 5 May 2003. On that spreadsheet the entry for 17 July 1999 discloses a claim for fifteen hours worked. The discovered photocopy of the diary for that day shows a blocking out and otherwise no entry. A perusal of the original diary discloses entries for the Regal Theatre at 12.14 pm and again at 6.00 pm and also refers to an “after show party”. It was put to the Claimant that had she not blocked out the diary entry in the copy discovered it would have been demonstrated that her claim for that day was false. It was put to her that the blocking out was aimed at hiding the falsity. She denied that, saying that the blocking out occurred because the entries did not relate to work. It is noted that the claim for 17 July 1999 is now no longer pursued and that the claim has changed materially between the date of filing and the actual hearing of this matter. The Claimant was also taken to consider a number of other illustrations demonstrating the same type of difficulty. There can be no doubt that the production of the original diary caused a revision of aspects of the claim that simply could not be maintained given the apparent inconsistencies. The Claimant maintained throughout that there was no intent on her part to mislead. In fairness to the Claimant it must be recognised that she was not solely responsible for the compilation of the original spreadsheet attached to the claim filed on 5 May 2003.
45 The Claimant told the Court under cross-examination that she did not keep a 2000 personal diary relative to the student village purposes. She did, however, make work related entries in the student village diary. Various people including the Claimant completed that diary. The Claimant identified several instances within the diary (exhibit 25) where her handwriting is found. In that regard she was questioned concerning the chronology of entries made given that on some days there are several different entries made, each with a different pen. The Claimant explained that such entries may have been made either contemporaneously with the happening of an event or at the end of a duty period. They could have been made either within the office or alternatively within her own unit. That explains the use of different pens.
46 The cross-examination of the Claimant also addressed the interrelationship between the rosters, the 1999 diary and the spreadsheets. The Claimant’s attention was drawn to the fact that the roster for 2 July 1999 indicates that she was on duty for that day and that she initially made a claim for having worked eight hours that day (which is now abandoned) whilst the relevant diary entry indicates that she was not working. In that regard the Claimant conceded that Resident Co-ordinators did swap from time to time. It would accordingly follow that just because the Claimant’s name was on the roster to work a specific day, it did not necessarily follow that she did in fact work that day. Accordingly the duty rosters do not alone necessarily identify the days actually worked.
47 The Claimant was also specifically taken to consider her claim for 8 July 1999 and in that regard conceded that her claim encompassed a paid meal break. With respect to 9 July 1999 the Claimant claimed eight hours work for “check-ins” from 12.00 noon to 8.00 pm, yet her diary shows an entry for the Regal Theatre at 6.00 pm. In that regard the Claimant concedes that she cannot say whether or not she attended the Regal Theatre that day. She also concedes that she does not know how many “check-ins” she did. She also concedes that she cannot say positively whether she worked between noon and 8.00 pm as indicated in exhibit 20 notwithstanding that she swore positively to the accuracy of that document.
48 Further cross-examination revealed that the Claimant was in similar difficulty with respect to other claims made for 1999. The Claimant admitted that many of her finishing times as reflected in exhibit 20 were simply estimates. The difficulty in that regard is demonstrated by the following exchange found at page 160 of the transcript:
MR HEATHCOTE: - 24th of July. Now on the 24th of July your particulars say that you worked for 16½ hours. Could you show me in the diary entry that corresponds to that where that 16 hour figure comes from?---On the 24th of July. I did Steve Shaw’s shift for that day.
How do you know that?---Okay. Based on that you wouldn’t know, would you?
And yet you’re saying to this court that you worked from 8.30 in the morning till 1 am. You say that it’s based on the diary. I’m trying to - - trying to find out from you where in the diary you get those numbers?---Well, I think it’s got written there 10 am to 1 am on duty; marathon movies in the rec room.
So which is right; exhibit 20 or the diary?---Your guess is as good as mine.
49 Another illustration showing that exhibit 20 is not necessarily accurate is demonstrated by the entry that relates to 20 October 1999 in which the Claimant claims to have worked six hours that day. Her personal diary shows that she was in Broome. The Claimant conceded that she was in fact in Broome on that day.
50 The Claimant was also cross-examined about her year 2000 claims. She was firstly cross-examined about her claims for work done during February. She was questioned about her attendance at the Point Peron residential staff weekend held on 5 and 6 February 2000. In that regard she said that it was a mandatory requirement that she attend that weekend and did in fact do so. With respect to other entries made for early February 2000 the Claimant admitted that the same were simply estimates. She conceded that she did not know her start times or finish times or indeed the length of time worked. She could not say if there were interruptions on account of meal breaks or for other reasons. The Claimant was next taken to consider the claim for 20 February 2000. She claims having worked thirteen hours that day from 10.00 am to 11.00 pm but the student village diary shows the first entry to be at 5.00 pm. The Claimant admitted not having any specific recollection of that day but surmises that she attended to other duties prior to 5.00 pm on that day. She also admitted that she could not substantiate her claim for flat meetings on 22, 23 and 24 February 2000 other than by relying on the fact that it was standard practice. The Claimant explained, when questioned about her claim for 28 February 2000, that she was permitted to go anywhere within the student village as long as the RSO (Residential Staff Office) was manned by herself or by an RA. Further she could go anywhere within the village provided that she carried the 6555 telephone and remained contactable. In such situations she could study or attend to other personal needs so long as she remained contactable.
51 The Claimant was also cross-examined as to whether she recalled having worked on the specific days forming part of exhibit 9 (extracts of the 2000 village diary). She said that she could not but relied on the diary to support her claims. Furthermore she could not recall the specific starting times of her duties on those days but relied on the fact that her duty commenced at certain times and finished at certain times dependant upon the day of the week.
52 The Claimant was also cross-examined concerning her claim for 15 May 2000. The Claimant alleges that she was on duty between 4.30 pm and 11.00 pm on that day. It was put to her that exhibit 27 (an e-mail sent to her by the Assistant Director, Mr Desmond Samuelu) is indicative of the fact that she may have been at the Murdoch Club for at least a portion of the evening and that someone else took over her duty during such absence. The Claimant said in that regard that she had no recollection of having attended the Murdoch Club at that time.
53 There is no particular need to review other aspects of the cross-examination of the Claimant. It suffices to say that she was taken through almost all of her claims and was asked questions concerning her recollection of what happened on those particular days. It is fair to say that the Claimant, in response to those questions, could not recall with any degree of particularity what actually occurred on those days. She relied on her knowledge of usual practices to give substance to what was recorded in the diary. It was her evidence that in 2000, as had been the case in 1999 that following the conclusion of her rostered duty she remained contactable at all times and in fact responded to calls until it was time to hand in the 6555 telephone the next morning.
54 During re-examination the Claimant re-affirmed that the reason why she blanked out information from her diary was so as to delete personal information that she considered not to be relevant to her claim. Further the Claimant explained that exhibit 20 was produced as a result of her preparation for the hearing of this matter. There was slimming down of the claims in that only claims having some documentary support were included. The Claimant also reiterated that pastoral care and social interaction was considered to be a very important part of her function. Concerning the issue of meal breaks the Claimant said that she was always on duty whilst having meals.
Desmond Tautua Samuelu
55 Mr Samuelu was the “Assistant Director, Residential” for the Murdoch University Student Village from January 1999 until the end of 2003. He was in charge of the Resident Co-ordinators.
56 He said that the Resident Co-ordinators’ job entailed pastoral care for five hundred or so students. The concern was to look after the health and safety of the students, be it physical or mental. The Resident Co-ordinators were expected to perform their duty during rostered hours and also outside of those hours. He explained that the village consisted of five courtyards, each with a co-ordinator. Consequently each co-ordinator was rostered to be on duty every fifth day.
57 He explained that co-ordinators were required to undertake training prior to commencement. Part of their duties included “checking-in” students however no particular record was kept of the performance of such duties. “Check-ins” took place during peak periods at the commencement of each semester. “Check-in” involved taking the student to the flat, introducing him or her to his or her flatmates, signing their contracts, providing a key and orientating them. Co-ordinators were also responsible for organising flat meetings and social functions. They were also required to participate in an orientation BBQ and other social events.
58 Co-ordinators played a vital role even outside of duty hours in ensuring that the village was maintained in a fit state. For example, if there were rubbish outside someone’s flat, the co-ordinator or any other staff member who saw it would be expected to intervene. They were also expected to deal with any conflict situation that might arise at any time within the courtyard. Their role was to be the “ears and eyes and to provide peer and mentoring support for the residents”. They were required to attend to breakdowns in units, attend to lockouts and the like. RA’s helped them out in those tasks but could not and did not become involved in some aspects of the duties such as conflict resolution and some flat inspections.
59 The RA’s were responsible to the co-ordinators and took their directions and orders from them. They had to participate in regular meetings. They consisted of a weekly meeting for Resident Co-ordinators and fortnightly meeting involving all Resident Co-ordinators and RA’s. He said the Resident Co-ordinators’ meetings usually took about an hour whilst the RC/RA meetings usually took an hour and a half.
60 Part of the Claimant’s duties included doing inspection rounds of the village at 9.00 pm and 11.00 pm Sundays to Thursdays inclusive and at 9.00 pm, 11.00 pm and 1.00 am on Fridays and Saturdays. The round entailed ensuring that the RSO and computer labs were safe, ensuring that there were no strangers about or using the facilities, checking study rooms and flats to ensure that there was no noise, checking the laundry areas, closing up common areas and other communal facilities. There was a requirement that parties be put to an end and that all sports equipment returned. However the overriding priority throughout was that of the safety of the students.
61 Following the conclusion of the co-ordinator’s rostered duty he or she retained the duty telephone in order to respond to any call received between the end of duty and the next morning.
62 Mr Samuelu testified that he was party to a meeting in which the Director, Mr Keith Cook, threatened the Claimant with dismissal on account that she could not attend on orientation day. The issue was subsequently resolved when the Claimant later met with Mr Cook.
63 Mr Samuelu testified under cross-examination that he was involved in the recruitment of the Claimant. He said that the Claimant was told that her duties involved not only being on roster, but also carrying out “check-ins”, “check-outs”, flat inspections, being involved in meetings, attending social functions and also taking part in orientation activities.
64 He agreed when cross-examined that not all Resident Co-ordinator or RC/RA meetings took place. Nor for that matter did all the Resident Co-ordinators attend all meetings. He also said that “check-outs” were scheduled to suit the Resident Co-ordinators’ needs. He said that in 2000 one of the Resident Co-ordinators had left early and accordingly the remaining Resident Co-ordinators were paid separately to do the “check-outs” in recognition of the extra burden placed on them by virtue of one of their number leaving early.
Respondent’s Case
65 The Respondent elected not to call evidence.
Findings on Critical Issues
66 The Respondent is a university that provides on-campus accommodation for approximately five hundred students in its student village. The village is divided up into five separate courtyards, each housing approximately one hundred students. At the material times each courtyard had a dedicated supervision team comprising one Resident Co-ordinator and two Resident Assistants. The Resident Co-ordinators lived within the courtyard for which they had responsibility. Each Resident Co-ordinator had a flat for which rent was paid. The RA’s lived in shared accommodation in the general residential flats. The RA’s were under the direct supervision of the Resident Co-ordinator who was in turn responsible to the Assistant Director, Residential.
67 The Claimant was employed on 5 July 1999 as a Resident Co-ordinator. Her employment was subject to the 1997 EBA. I find that she was employed as a Level 5 employee pursuant to the 1997 EBA. I also find that she did not enter into any flexible remuneration agreement. The contract expired at the end of the second semester in 1999. The Claimant was required to work a duty roster every fifth day when she was responsible for overseeing the entire student village. The hours of duty varied depending on which day of the week her duty fell. I accept that her duty hours were as follows:
- If the duty fell on Monday to Thursday the Claimant was on duty between 5.00 pm and 11.00 pm,
- If the duty fell on a Friday the Claimant was on duty between 5.00 pm and 1.00 am the following morning,
- If the duty fell on a Saturday the Claimant was on duty between 10.00 am and 1.00 am the following morning,
- If the duty fell on a Sunday the Claimant was on duty between 10.00 am and 11.00 pm,
- If the duty fell on a Public Holiday the Claimant was on duty between 8.30 am and 11.00 pm.
68 I also accept that at the end of each duty period the Claimant remained at her premises within the student village and was immediately available to respond to requests from residents or deal with any problems that arose within the village. My acceptance of the Claimant’s evidence and that of Mr Samuelu supports that. Exhibit 9 also accurately reflects the call out situation. It is the case that the Claimant retained the on-duty mobile telephone, “the 6555 telephone”, for that purpose and that she did respond personally to calls received. I also find that at 8.30 am on the morning following her rostered duty the Claimant would return the duty telephone and master keys to the RSO.
69 In addition to the rostered duty the Claimant was required to attend training sessions, perform “check-ins” and “check-outs” and also attend regular meetings. I also accept that she was involved with village social functions both in an organising and participatory capacity.
70 The Claimant was also expected to deal with issues that arose within her courtyard at any time, including personality clashes, cleanliness issues, noise issues and personal difficulties encountered by residents. She was also expected to deal with any breach of village rules at any time.
71 Following her initial engagement in 1999 the Claimant was again employed on 24 January 2000 for a fixed term until 1 December 2000. The terms of her contract were essentially the same as they had previously been, as were her duties, except that duty rosters commenced at 4.30 pm instead of 5.00 pm, and as from October 2000 she was not required to work during the day of any roster that fell on a public holiday. Her roster on such days commenced at 4.30 pm.
Determination
Onus and Standard of Proof
72 The Claimant bears the onus of proving her claims on the balance of probabilities. In that regard she must satisfy the Court that each and every claim particularised is made out. Of course the Respondent does not bear any legal burden.
Issues
73 It is not in dispute that the 1997 and the 2000 EBAs governed the employment of the Claimant. However, what is in dispute is whether or not the Claimant was remunerated in accordance with the agreements for the hours she actually worked. Accordingly the Claimant needs to establish what the applicable rate of pay was and that the employer did not pay her at least as much as she was entitled to receive under the certified agreements for the hours worked.
Classification
74 One of the critical issues to be determined is the Claimant’s rate of pay pursuant to the EBAs.
75 In short the Respondent says that the Claimant is to be regarded as a Level 2 worker whereas the Claimant says that she was a Level 5 worker. In my view there can be no doubt that the Claimant was employed on the basis that she was a Level 5 worker. Her employment agreement (exhibit 6) states that. Indeed her rate of pay referred to in the contract of employment is consistent with that referred to in Schedule A of the 1997 EBA. The pay slips (exhibit 15) also reflect the fact that the Claimant was paid at that level during the course of her employment. Notwithstanding that, the Respondent now seeks to resile from the position to which it agreed. In my view the Respondent cannot resile from the classification to which it agreed. In any event I take the view that the Claimant’s responsibilities are more in keeping with a Level 5 classification than a Level 2 classification.
76 In that regard I prefer the submissions made on behalf of the Claimant to those made by the Respondent. Exhibit 6 serves as an express recognition by the Respondent of the proper classification. The fact is that not only did the Respondent appoint the Claimant at that level but continued to pay her at such. If there were a problem with the classification, one would have expected the issue to come to the fore much earlier. I take the view that it does the Respondent little credit to use its response to this claim as an avenue to resile from the classification to which it agreed. In any event the Claimant’s duties are consistent with the Level 5 descriptors within the EBA particularly given her qualifications, her supervisory responsibilities and the nature of responsibilities. It is for that reason that her employment agreement simply reflects the recognition by the Respondent that the Claimant’s duties were those of a Level 5 employee.
Hours Worked
77 The Claimant says that she worked the hours set out in exhibit 20 for the years 1999 and 2000. The Respondent denies the Claimant’s claims and puts her to the proof on such matters. The Claimant has testified and produced documentary evidence to support her claims. The Respondent has elected not to call evidence. Can the Claimant establish that she worked the hours alleged?
78 The Respondent says that the Claimant’s evidence should be treated with “extreme caution”. It points out that the claim as initially filed was knowingly exaggerated. It was an ambit claim. It accordingly is “a carelessly untruthful grab for as much money as even stretch credibility would permit”. The Respondent says that the Claimant behaved dishonestly in swearing her affidavit of discovery by failing to disclose possession of the original 1999 diary. It is said that if it were not for the diligence of the Respondent the “manifestly bogus” and exaggerated claims would not have reduced as they have.
79 From the outset it must be said that there has been a considerable shift in the quantum claimed. At best, all that can be said is that the original claim filed was carelessly framed. It was clearly an ambit claim. The notion of ambit claims has no place in this jurisdiction. The reality is that the Claimant was never in a position to prove the claim as first filed. Further it is the case that the failure to discover the 1999 diary (exhibit 14) at first instance could have potentially misled the Respondent and the Court. The discovery and production of exhibit 25, being the photocopies of the relevant diary pages containing blocking out, rightly caused the Respondent a great deal of concern and consternation leading to its diligent approach.
80 The Respondent’s view is that the Claimant acted dishonestly and possibly even illegally in her attempt at hiding the truth that might have negatively impacted upon her claim. The Claimant says that she did not act dishonestly and indeed did not intentionally seek to mislead. She says that if the Respondent was mislead then that occurred quite innocently. Her position was that she blocked out certain entries in her diary because they did not relate to her work and further she thought that they were not relevant to her claim.
81 Although the Claimant is an articulate person and possesses academic qualifications, she is not a lawyer. Sometimes people such as the Claimant do not read documents carefully enough or alternatively fail to treat documents with the importance they deserve. In this case it is obvious that had she read the affidavit of discovery carefully and considered its importance, ensuring that the contents of the affidavit were true and correct, she would not have executed the affidavit in the form that she did. In that regard it was incumbent upon her legal adviser to ensure that the Claimant understood what she was doing and to ensure that the Claimant was aware of the importance of the accuracy of the information that she gave under oath. I fear that may not have occurred. I say that because I believed the Claimant when she told me that she did not intend to mislead. The Claimant, in my view, came across honestly in the witness box. She was ready to make concessions when she needed to and simply gave the best evidence that she could. Although on one view it could be said that the circumstances surrounding discovery is demonstrative of dishonest or even illegal conduct, I am of the view that it does not in this instance. I accept that the blocking out was genuine and occurred as a result of the Claimant simply not wanting others to be privy to personal details, which she felt, were not pertinent to the case. It was incumbent on her legal representative to alert the Claimant to the potential problem caused by the blocking out. It appears that may not have been done.
82 Although I do not find that the Claimant acted dishonestly or illegally, it remains the case that the 1999 diary presents particular difficulty for her in so far as it is used as the foundation of her claims. In so far as exhibit 20 is based on what is contained in the 1999 diary it cannot be established on the balance of probabilities that exhibit 20 is factually accurate. The diary constitutes a record of appointments that she made and which she may or may not have kept. The diary was clearly written prospectively in anticipation of events that may or may not have occurred. It cannot be relied upon to establish that anything did happen. The cross-examination of the Claimant concerning perceived inconsistencies between the diary and exhibit 20 is demonstrative of that. The Claimant does not have a specific recollection of each day the subject of her claim. She cannot say which of the events indicated in her 1999 diary actually took place. The duty rosters (exhibit 7) do not assist the Claimant in augmenting her diary entries because in the end she conceded that rosters were swapped and accordingly she cannot now say that on any given rostered day that she worked on that appointed day.
83 It is argued for the Claimant that the difficulty in being able to prove days and hours worked results from the employer’s non-compliance with Regulations 131A, 131B, 131D and 131E of the Workplace Relations Regulations 1996 (the Regulations). It is said that had the employer kept such records the Claimant’s position would not have been so difficult. In submissions Counsel for the Claimant said at page 332 of the transcript:
“The position was, those records weren’t kept and therefore the applicant has had to essentially reconstruct as best one can what work was done during the 2 years that she worked for the respondent as a residential co-ordinator.”
84 In my view whether or not the Respondent has complied with the Regulations is not an issue to be determined in this matter. If it has not complied, the Respondent may be the subject of action for non-compliance that might, if successful, subject it to penalties. Those penalties often reflect the difficulties arising from employees not being able to establish their claims.
85 Having said that, the fact that there may have been a failure to keep appropriate records as required by the Regulations does not mean that the bar is lowered. The onus still remains with the Claimant to prove her case to the appropriate standard. Close enough is not good enough. It is not appropriate for the Claimant to reconstruct events as best she can. She is required to satisfy the Court that for each day claimed she worked the days and hours alleged. For the reasons previously stated neither the 1999 diary entries nor the duty rosters enable her to support aspects of her claims and to prove the same on the balance of probabilities.
86 Having said that, it is not to say that the Claimant cannot establish all of her allegations concerning the days and hours worked. Indeed when one has regard for the Claimant’s evidence as supported by the documentary evidence contained in exhibits 9 and 26 findings can be made that the Claimant worked on certain days. That aligned with other evidence permit findings on the balance of probabilities that she worked certain hours on those days
87 Exhibit 9 comprises job summaries for some of the days worked in 1999 together with photocopies of the 2000 village diary (exhibit 23). So far as the 2000 diary is concerned the Respondent says that the diary does no more than to provide evidence about things alleged to have occurred as documented during the time that the Claimant was the duty Resident Co-ordinator. On the other hand the Claimant submits that the village diary, when considered with the duty rosters and the Claimant’s evidence is strongly suggestive that the Claimant worked those hours provided that I can be satisfied that she worked those particular days. That finding, it is said, could be made in light of the fact that the Claimant worked set hours. It follows that the Court could infer that the Claimant worked her usual hours on those days. I agree with that submission. It follows therefore that I find that the Claimant worked the days to which exhibits 9 and 26 refer. She cannot, however, (for the reasons previously given) prove that she worked on the other days she claims to have worked. In so far as I accept that she worked on the days referred to in exhibit 9 it can be inferred that she worked for the hours set out in exhibit 20. I am also satisfied, based on the oral testimony given as supported by exhibit 26 that the Claimant attended the residential staff weekend held at Point Peron on 5 and 6 February 2000. Notwithstanding that, the Claimant has not been able to establish that she was not paid for her attendance at Point Peron.
88 I will set out in table form at the end of these reasons the days and hours that I find the Claimant has established that she worked.
“Standby”, “On Call” or “Availability”
89 It is the case that the Claimant retained the 6555 telephone following every rostered duty. It is also the case that she responded to calls for assistance outside of her rostered duty time. I accept the Claimant’s evidence in that regard. Indeed the fact that she attended to call outs following her rostered duty is supported by exhibit 9. There are many illustrations of call outs found within that exhibit. Accordingly I find, as previously stated, that the Claimant kept a duty telephone following her rostered shift to respond to calls. She did so in order to comply with her understanding of her requirements as set out in exhibit 17 and in order to ensure the safety of students, which was her primary responsibility. Mr Samuelu’s evidence supports the fact that safety was a major issue of concern. Indeed there can be no doubt that the Claimant was of the view that she was required to be available to respond to all calls from the end of the duty roster to the time that she handed back the mobile telephone on the next morning. The Claimant remained at her place of employment at the conclusion of her duty hours and was immediately available. The Claimant responded to calls out of hours on a regular basis. I will return shortly to consider whether the Claimant’s availability enables her to claim payment pursuant to the out of hours contact clause.
Application of EBAs to the Employment Contract
90 There is no dispute that the relevant scope clauses of the EBAs cover both the Claimant and the Respondent. Accordingly the terms of the EBAs govern the pay rates applicable to the Claimant for the work she performed. It is not the case that the Claimant’s remuneration could be packaged so as to achieve reasonable remuneration. Any attempt to do so amounts to contracting out of the EBAs. Further it cannot be said that the agreement between the Claimant and the Respondent constituted a Flexible Remuneration agreement pursuant to clause 40 of the 1997 EBA because the strict requirements as to form have not been complied with.
91 It is the case that the Claimant carried out her duties in a way that permitted and enabled her to attend to her own personal requirements whilst on duty. That was only subject to her carrying out certain tasks at certain times. She also had to necessarily respond to student needs when required. Accordingly the time spent on duty constituted the carrying out of work during such time. In that regard I accept that I should follow the approach enunciated in The Hospital Employees Industrial Union of Workers, WA v The Proprietors, Lee-Downs Nursing Home (1977) 57 WAIG 455 at 455-456.
92 Clause 18 of the 1997 EBA governed the hours of work. The ordinary hours of work pursuant to the 1997 EBA are between 6.00 am and 7.00 pm Monday to Friday. The same clause sets out that those hours are to be considered ordinary hours except where a worker is a shift worker or where the Respondent and the relevant union had agreed to flexible hours. There is in this instance no evidence that the union agreed to any such arrangement. Furthermore it will be obvious that the Claimant could not be considered to be a “shift worker” within the meaning of clause 45 of the 1997 EBA. A “shift worker” is defined in clause 5 of the 1997 EBA to mean:
“an employee designated as such.”
93 In that regard there is simply no evidence before the Court that the Claimant was designated as such. Further that could not be inferred.
94 It seems to me that it necessarily follows that the hours worked after 7.00 pm on Mondays to Fridays together with the hours worked on weekends and public holidays were hours worked outside the normal spread of hours. They could quite conceivably attract overtime rates pursuant to clause 43 of the 1997 EBA. There can be no doubt that the Claimant was not paid at overtime rates for working outside of normal hours whilst rostered for duty. Notwithstanding that the Claimant seems to have taken the view that she was appropriately paid at ordinary rates for working outside of ordinary hours when rostered. Indeed there is no claim in exhibit 20 for the payment of overtime whilst working outside of normal hours when carrying out rostered duty. There also seems to be an implicit acceptance of that in the written submissions received. Why that is so is not readily apparent. Given that that issue was not argued and is not in contention I simply leave it alone. It follows in those circumstances that it would not be appropriate to make any finding with respect to the payment of overtime for hours worked whilst on duty outside of normal hours.
95 It is submitted by the Claimant that the hours she remained available and worked following her rostered duty should have been paid to her pursuant to clause 44 of the 1997 EBA (the “out of hours” contact clause). Subclause (1) thereof identifies three different categories of out of hours duty being “Standby”, “On call” and “Availability”. In that regard the Claimant says that the definition of “Standby” best suits her particular circumstances. “Standby” is defined to mean:
“ … a written instruction to an employee to remain at the employee’s place of employment during any period outside the employee’s normal hours of duty, and to perform certain designated tasks periodically or on an ad hoc basis. Such employee shall be provided with appropriate facilities for sleeping if attendance is overnight, and other personal needs, where practicable.”
96 The Claimant says that she remained on the premises of the student village and was immediately available from the end of the duty roster until 8.30 am on weekday mornings or until 9.00 am on weekends or public holidays. Indeed the fact that she lived at the village facilitated that. Further it is the case that she did, during such times, perform certain designated tasks and did so on an ad hoc basis. I accept her evidence in that regard. Mr Samuelu’s evidence is also supportive of her contention in that regard. Accepting that each of those factors would otherwise bring her within the definition of “Standby”, the pivotal question remaining is whether there is evidence before the Court that would enable a finding to be made that she received the requisite “written instruction”. The answer is no. There is no evidence of any specific written instruction in that regard. Indeed no such document has been produced. In so far as the Claimant’s duty statement (exhibit 7) could be said to constitute a written instruction it will be obvious that there is no specific instruction to the Resident Co-ordinator that he or she is to remain on “standby”. Could it be inferred from the duty statement or position description that the Claimant was required to be on “standby”? In my view the answer is in the negative because the requirement to be an emergency contact person as is stated in those documents falls within the confines of the duty hours performed in accordance with the after hours duty roster. Accordingly the Claimant has not established as is required, that there was a “written instruction” from the employer that she be on “standby”. Similarly any requirement for her to be “on call” or otherwise “available” within the meaning of clause 44(1) of the 1997 EBA also requires a “written instruction”. In the absence of proof of any written instruction the Claimant cannot establish her claims for payment for being on standby, on call or otherwise available.
97 The Claimant suggests that the duty rosters (exhibit 7) posted on the notice board can constitute a written instruction to be on standby. With respect I do not agree. That certainly cannot be said of the 1999 rosters. They indicate that after hours assistance was available by calling the Duty Co-ordinator “during duty hours”. The 2000 rosters, which changed in format from the 1999 rosters, do not specifically instruct the Duty Co-ordinator to remain available after hours. Further it could not be inferred from the rosters that the co-ordinators were to remain available outside of the duty hours. It will be seen that the instruction to contact the duty officer is one aimed at residents and, in any event, relates to contact made concerning certain events occurring within the RSO’s hours.
Introduction of the 2000 EBA – 1 October 2000
98 The Claimant submits that the hours worked pursuant to the duty roster changed in characterisation because of the introduction of the 2000 EBA effective 1 October 2000. The 2000 EBA contained a new definition of shift worker. In clause 8 thereof “Shift worker” is defined as follows:
“Shift Worker” means an employee who is required to work rostered hours of duty, in accordance with the Shiftworker or Security Officer provisions of clause 19 - Hours.
99 That change, it is argued, removed the necessity for an active designation of an employee to shift work. The Claimant argues that she accordingly became a shift worker from 1 October 2000 having regard for clauses 19 and 43 of the 2000 EBA. I reject that argument. There is no evidence to support the contention that the Claimant was required to work rostered hours of duty in accordance with the clause 19 shift workers provisions. The shift workers provisions simply have no applicability to the Claimant. It is the case that the Claimant does not fall within the provisions of clause 19(8) which provides:
(8) The ordinary hours of duty for shift workers shall be 75 per fortnightly roster period to be worked in not more than 10 shifts each not exceeding 10.5 hours duration (exclusive of meal breaks) on any of the days of the roster period; provided that no employee shall be rostered for more than six (6) consecutive days in any roster period.
100 The onset of the 2000 EBA did not result in any change so far as the Claimant is concerned.
Meal Breaks
101 Finally there was some suggestion by the Respondent that the Claimant was not entitled to be paid for periods when she had a meal break. The evidence dictates, however, that the Claimant did not at any stage have a “meal break” as opposed to “a meal” whilst on duty. It is not the case that she went off duty for half an hour to have a meal. The fact is that she remained on duty for the full period of her duty roster and accordingly was entitled to be paid for such.
Conclusion
102 The Claimant has only been able to prove that she worked the days and hours set out in the schedules hereto. However that does not assist her in this matter given that she is not claiming payment at overtime rates for those hours worked, whilst on after hours rostered duty, outside of the normal spread of hours. In all other respects she has not proved her claim.
103 Having stated my conclusion, I feel compelled to comment that, in my view, the 1997 and 2000 EBAs have little, if any, applicability to the conditions of employment of the Claimant. It is readily apparent that the Respondent has adopted the EBAs to determine the level and rate of pay of the Claimant but in most other respects such as the spread of ordinary hours, overtime and out of hours contact, the agreements are simply not apposite. In the circumstances its may have been better and in the best interests of both parties to fully express the conditions of employment in a document that could have been registered as an individual agreement under the relevant legislation or alternatively have the EBAs varied so as to include the particular circumstances of the Resident Co-ordinators.
G Cicchini
Industrial Magistrate
SCHEDULE 1999
|
DAY |
DATE |
HOURS |
NORMAL |
HOURS OUTSIDE NORMAL SPREAD |
|
Monday |
20 September |
6 hours 5.00 pm to 11.00 pm |
2 hours 5.00 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Saturday / Sunday |
25/26 September |
16.5 hours 8.30 am to 1.00 am |
Nil |
16.5 hours |
|
Tuesday |
28 September |
6 hours 5.00 pm to 11.00 pm |
2 hours 5.00 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Tuesday |
5 October |
6 hours 5.00 pm to 11.00 pm |
2 hours 5.00 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Sunday |
10 October |
13 hours 10.00 am to 11.00 pm |
Nil |
13 hours |
|
Friday |
15 October |
8 hours 5.00 pm to 1.00 am |
2 hours 5.00 pm to 7.00 pm |
6 hours 7.00 pm to 1.00 am |
|
Monday |
25 October |
6 hours 5.00 pm to 11.00 pm |
2 hours 5.00 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Saturday / Sunday |
30/31 October |
16.5 hours 8.30 am to 1.00 am |
Nil |
16.5 hours |
|
Sunday |
31 October |
13 hours 10.00 am to 11.00 pm |
Nil |
13 hours |
|
Thursday |
4 November |
6 hours 5.00 pm to 11.00 pm |
2 hours 5.00 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Tuesday |
9 November |
6 hours 5.00 pm to 11.00 pm |
2 hours 5.00 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Friday |
12 November |
8 hours 5.00 pm to 1.00 am |
2 hours 5.00 pm to 7.00 pm |
6 hours 7.00 pm to 1.00 am |
|
Sunday |
14 November |
13 hours 10.00 am to 11.00 pm |
Nil |
13 hours |
|
Monday |
15 November |
6 hours 5.00 pm to 11.00 pm |
2 hours 5.00 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Monday |
22 November |
6 hours 5.00 pm to 11.00 pm |
2 hours 5.00 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Monday |
29 November |
6 hours 5.00 pm to 11.00 pm |
2 hours 5.00 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
SCHEDULE 2000
|
DAY |
DATE |
HOURS |
NORMAL |
HOURS OUTSIDE NORMAL SPREAD |
|
Saturday |
5 February |
13 hours (8.30 am to 9.30 pm |
Nil |
13 hours |
|
Sunday |
6 February |
5.5 hours (10.30 am to 4.00 pm |
Nil |
5.5 hours |
|
Tuesday |
15 February |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Sunday |
20 February |
13 hours 10.00 am to 11.00 pm |
Nil |
13 hours |
|
Friday |
25 February |
8.5 hours 4.30 pm to 1.00 am |
2.5 hours 4.30 pm to 7.00 pm |
6 hours 7.00 pm to 1.00 am |
|
Monday |
28 February |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Wednesday |
1 March |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 11.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Monday |
6 March (Public Holiday) |
14.5 hours 8.30 am to 11.00 pm |
Nil |
14.5 hours |
|
Saturday |
11 March |
15 hours 10.00 am to 1.00 am |
Nil |
15 hours |
|
Tuesday |
21 March |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Sunday |
26 March |
13 hours 10.00 am to 11.00 pm |
Nil |
13 hours |
|
Thursday |
30 March |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Friday |
31 March |
8.5 hours 4.30 pm to 1.00 am |
2.5 hours 4.30 pm to 7.00 pm |
6 hours 7.00 pm to 1.00 am |
|
Monday |
10 April |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Saturday / Sunday |
15/16 April |
15 hours 10.00 to 1.00 am |
Nil |
15 hours |
|
Thursday |
20 April |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Tuesday |
25 April (Public Holiday) |
14.5 hours 8.30 am to 11.00 pm |
Nil |
14.5 hours |
|
Sunday |
30 April |
13 hours 10.00 am to 11.00 pm |
Nil |
13 hours |
|
Friday / Saturday |
5/6 May |
8.5 hours 4.30 pm to 1.00 am |
2.5 hours 4.30 pm to 7.00 pm |
6 hours 7.00 pm to 1.00 am |
|
Wednesday |
10 May |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Monday |
15 May |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Saturday / Sunday |
20/21 May |
15 hours 10.00 am to 1.00 am |
Nil |
15 hours |
|
Thursday |
25 May |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Tuesday |
30 May |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Sunday |
4 June |
13 hours 10.00 am to 11.00 pm |
Nil |
13 hours |
|
Wednesday |
14 June |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Friday / Saturday |
16/17 June |
8.5 hours 4.30 pm to 1.00 am |
2.5 hours 4.30 pm to 7.00 pm |
6 hours 7.00 pm to 1.00 am |
|
Monday |
19 June |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Saturday / Sunday |
24/25 June |
16 hours 9.00 am to 1.00 am |
Nil |
16 hours |
|
Thursday |
29 June |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Monday |
3 July |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Sunday |
9 July |
15 hours 8.00 am to 11.00 pm |
Nil |
15 hours |
|
Friday / Saturday |
14/15 July |
8.5 hours 4.30 pm to 1.00 am |
2.5 hours 4.30 pm to 7.00 pm |
6 hours 7.00 pm to 1.00 am |
|
Wednesday |
19 July |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Monday |
24 July |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Saturday / Sunday |
29/30 July |
10.5 hours 2.30 pm to 1.00 am |
Nil |
10.5 hours |
|
Thursday |
3 August |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Tuesday |
8 August |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Sunday |
13 August |
14 hours 9.00 am to 11.00 pm |
Nil |
14 hours |
|
Friday / Saturday |
18/19 August |
8.5 hours 4.30 pm to 1.00 am |
2.5 hours 4.30 pm to 7.00 pm |
6 hours 7.00 pm to 1.00 am |
|
Monday |
21 August |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Monday |
28 August |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Saturday / Sunday |
2/3 September |
16 hours 9.00 am to 1.00 am |
Nil |
16 hours |
|
Thursday |
7 September |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Tuesday |
12 September |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Sunday |
17 September |
14 hours 9.00 am to 11.00 pm |
Nil |
14 hours |
|
Saturday / Sunday |
23/24 September |
16 hours 9.00 am to 1.00 am |
Nil |
16 hours |
|
Wednesday |
27 September |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Monday |
2 October (Public Holiday) |
6.5 hours 4.30 pm to 11.00 pm |
Nil |
6.5 hours |
|
Saturday |
7 October |
7.5 hours 9.00 am to 4.30 pm |
Nil |
7.5 hours |
|
Thursday |
12 October |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Tuesday |
17 October |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Friday / Saturday |
27/28 October |
8.5 hours 4.30 pm to 1.00 am |
2.5 hours 4.30 pm to 7.00 pm |
6 hours 7.00 pm to 1.00 am |
|
Wednesday |
1 November |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Monday |
6 November |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Saturday / Sunday |
11/12 November |
16 hours 9.00 am to 1.00 am |
Nil |
16 hours |
|
Thursday |
16 November |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Tuesday |
21 November |
6.5 hours 4.30 pm to 11.00 pm |
2.5 hours 4.30 pm to 7.00 pm |
4 hours 7.00 pm to 11.00 pm |
|
Sunday |
26 November |
14 hours 9.00 am to 11.00 pm |
Nil |
14 hours |