AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION OF EMPLOYEES, W.A. CLERICAL AND ADMINISTRATIVE BRANCH -v- CITY OF WANNEROO
Document Type: Decision
Matter Number: M 198/2003
Matter Description: Local Government Officers (Western Australia) Award 1999
Industry:
Jurisdiction: Industrial Magistrate
Member/Magistrate name: INDUSTRIAL MAGISTRATE R.H. BURTON
Delivery Date: 7 Jun 2005
Result: Underpayment for period in issue $438.99
Citation: 2005 WAIRC 01891
WAIG Reference: 85 WAIG 1997
2005 WAIRC 01891
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT
PARTIES AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION OF EMPLOYEES, W.A. CLERICAL AND ADMINISTRATIVE BRANCH
CLAIMANT
-V-
CITY OF WANNEROO
RESPONDENT
CORAM INDUSTRIAL MAGISTRATE R.H. BURTON
DATE TUESDAY, 7 JUNE 2005
CLAIM NO. M 198 OF 2003
CITATION NO. 2005 WAIRC 01891
Representation
CLAIMANT MS J BOOTS (OF COUNSEL) OF BOOTS & CO LAWYERS
RESPONDENT MS L GIBBS (OF COUNSEL) OF CCI LEGAL PTY LTD
Supplementary Reasons for Decision
BACKGROUND
1. In this matter I was required to determine whether the work of Mr Michael Van Der Waarden, an employee of the Respondent came within the definition of “Officer or Employee” as set out in clause 3.9 of the Local Government Officers (Western Australia) Award 1999 (the Award) as contended by the Claimant or, alternatively, whether it came within the definition of “Community Services Officer (Welfare and ancillary services)” as set out in clause 3.4 of the Award as contended by the Respondent.
2. In my Reasons for Decision published on 25 August 2004 I found that the employee was a Patrol Officer and, as such, came within the definition of “Officer or Employee”. The outcome lead to a finding that the employee had been underpaid. The amount, of underpayment was not before me to resolve.
3. At the time of publishing my Reasons I made orders to the effect that the Respondent was liable for the underpayment and gave the parties an opportunity to consult concerning quantum. The parties have attempted without success to resolve quantum. The issue continues to remain live between them. I also at that time ordered that pre-judgment interest was to be paid to the employee calculated at the rate of 6% on the quantum payable and that such amount was to be fixed in accordance with section 179A(1)(b) of the Workplace Relations Act 1996. I also ordered that disbursements of $40.00 were to be paid by the Respondent to the Claimant. Finally I ordered that the Respondent should not suffer any penalty for its breach.
4. The unresolved issue of quantum of the underpayment came back before me because the Respondent, which on 15 September 2004 instituted an appeal against my decision in the Federal Court of Australia, cannot have the same determined until I make final orders with respect to this matter. Accordingly on 16 May 2005 I further heard from the parties with respect to the outstanding issues. I informed them that I would give further written reasons with respect to those issues and that such reasons would be delivered to them by post.
FURTHER DETERMINATION
5. I am asked to determine the correct fortnightly wage of the said employee given my finding that he was a Patrol Officer within the meaning of the Award. It is axiomatic that the difficulty posed in calculating quantum arises from the fact that I was asked to make the calculations based upon one single representative fortnightly period as opposed to calculating quantum over a full year or, alternatively, over the full period of the employee’s employment in that classification.
6. Ms Boots for the Claimant submitted that the correct figure was $656.02 based on her contention that overtime became payable after 76 hours. Clause 5 of the Employment Contract (Exhibit E) however provides that employees usual hours of work were to average 80 hours per fortnight.
7. Ms Gibbs for the Respondent argues that the employer is entitled to average out the hours of work over a four week period in accordance with clause 19.1.2 of the Award and I find that to be the case because looking at one fortnightly period alone can distort the position relating to time worked. Any given fortnightly period may not correctly reflect the average hours worked over 28 days. In fact the target fortnightly period reflects a disproportionate amount of overtime worked and thus is not necessarily reflective of a usual fortnightly pay period.
8. I find that there should not be set-off for any more than two pay periods given clause 5 of the Employment Contract. It follows that with set-off applying the amount underpaid for the period in issue is $438.99, as contended by the Respondent.
9. There will be orders accordingly.
RH Burton
Industrial Magistrate
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT
PARTIES AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION OF EMPLOYEES, W.A. CLERICAL AND ADMINISTRATIVE BRANCH
CLAIMANT
-V-
CITY OF WANNEROO
RESPONDENT
CORAM INDUSTRIAL MAGISTRATE R.H. BURTON
DATE TUESDAY, 7 JUNE 2005
CLAIM NO. M 198 OF 2003
CITATION NO. 2005 WAIRC 01891
Representation
CLAIMANT MS J BOOTS (OF COUNSEL) OF BOOTS & CO LAWYERS
RESPONDENT MS L GIBBS (OF COUNSEL) OF CCI LEGAL PTY LTD
Supplementary Reasons for Decision
BACKGROUND
1. In this matter I was required to determine whether the work of Mr Michael Van Der Waarden, an employee of the Respondent came within the definition of “Officer or Employee” as set out in clause 3.9 of the Local Government Officers (Western Australia) Award 1999 (the Award) as contended by the Claimant or, alternatively, whether it came within the definition of “Community Services Officer (Welfare and ancillary services)” as set out in clause 3.4 of the Award as contended by the Respondent.
2. In my Reasons for Decision published on 25 August 2004 I found that the employee was a Patrol Officer and, as such, came within the definition of “Officer or Employee”. The outcome lead to a finding that the employee had been underpaid. The amount, of underpayment was not before me to resolve.
3. At the time of publishing my Reasons I made orders to the effect that the Respondent was liable for the underpayment and gave the parties an opportunity to consult concerning quantum. The parties have attempted without success to resolve quantum. The issue continues to remain live between them. I also at that time ordered that pre-judgment interest was to be paid to the employee calculated at the rate of 6% on the quantum payable and that such amount was to be fixed in accordance with section 179A(1)(b) of the Workplace Relations Act 1996. I also ordered that disbursements of $40.00 were to be paid by the Respondent to the Claimant. Finally I ordered that the Respondent should not suffer any penalty for its breach.
4. The unresolved issue of quantum of the underpayment came back before me because the Respondent, which on 15 September 2004 instituted an appeal against my decision in the Federal Court of Australia, cannot have the same determined until I make final orders with respect to this matter. Accordingly on 16 May 2005 I further heard from the parties with respect to the outstanding issues. I informed them that I would give further written reasons with respect to those issues and that such reasons would be delivered to them by post.
FURTHER DETERMINATION
5. I am asked to determine the correct fortnightly wage of the said employee given my finding that he was a Patrol Officer within the meaning of the Award. It is axiomatic that the difficulty posed in calculating quantum arises from the fact that I was asked to make the calculations based upon one single representative fortnightly period as opposed to calculating quantum over a full year or, alternatively, over the full period of the employee’s employment in that classification.
6. Ms Boots for the Claimant submitted that the correct figure was $656.02 based on her contention that overtime became payable after 76 hours. Clause 5 of the Employment Contract (Exhibit E) however provides that employees usual hours of work were to average 80 hours per fortnight.
7. Ms Gibbs for the Respondent argues that the employer is entitled to average out the hours of work over a four week period in accordance with clause 19.1.2 of the Award and I find that to be the case because looking at one fortnightly period alone can distort the position relating to time worked. Any given fortnightly period may not correctly reflect the average hours worked over 28 days. In fact the target fortnightly period reflects a disproportionate amount of overtime worked and thus is not necessarily reflective of a usual fortnightly pay period.
8. I find that there should not be set-off for any more than two pay periods given clause 5 of the Employment Contract. It follows that with set-off applying the amount underpaid for the period in issue is $438.99, as contended by the Respondent.
9. There will be orders accordingly.
RH Burton
Industrial Magistrate
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT
PARTIES AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION OF EMPLOYEES, W.A. CLERICAL AND ADMINISTRATIVE BRANCH
CLAIMANT
-v-
CITY OF WANNEROO
RESPONDENT
CORAM INDUSTRIAL MAGISTRATE R.H. BURTON
DATE TUESDAY, 7 JUNE 2005
CLAIM NO. M 198 OF 2003
CITATION NO. 2005 WAIRC 01891
Representation
CLAIMANT Ms J Boots (of Counsel) of Boots & Co Lawyers
RESPONDENT Ms L Gibbs (of Counsel) of CCI Legal Pty Ltd
Supplementary Reasons for Decision
BACKGROUND
- In this matter I was required to determine whether the work of Mr Michael Van Der Waarden, an employee of the Respondent came within the definition of “Officer or Employee” as set out in clause 3.9 of the Local Government Officers (Western Australia) Award 1999 (the Award) as contended by the Claimant or, alternatively, whether it came within the definition of “Community Services Officer (Welfare and ancillary services)” as set out in clause 3.4 of the Award as contended by the Respondent.
- In my Reasons for Decision published on 25 August 2004 I found that the employee was a Patrol Officer and, as such, came within the definition of “Officer or Employee”. The outcome lead to a finding that the employee had been underpaid. The amount, of underpayment was not before me to resolve.
- At the time of publishing my Reasons I made orders to the effect that the Respondent was liable for the underpayment and gave the parties an opportunity to consult concerning quantum. The parties have attempted without success to resolve quantum. The issue continues to remain live between them. I also at that time ordered that pre-judgment interest was to be paid to the employee calculated at the rate of 6% on the quantum payable and that such amount was to be fixed in accordance with section 179A(1)(b) of the Workplace Relations Act 1996. I also ordered that disbursements of $40.00 were to be paid by the Respondent to the Claimant. Finally I ordered that the Respondent should not suffer any penalty for its breach.
- The unresolved issue of quantum of the underpayment came back before me because the Respondent, which on 15 September 2004 instituted an appeal against my decision in the Federal Court of Australia, cannot have the same determined until I make final orders with respect to this matter. Accordingly on 16 May 2005 I further heard from the parties with respect to the outstanding issues. I informed them that I would give further written reasons with respect to those issues and that such reasons would be delivered to them by post.
FURTHER DETERMINATION
- I am asked to determine the correct fortnightly wage of the said employee given my finding that he was a Patrol Officer within the meaning of the Award. It is axiomatic that the difficulty posed in calculating quantum arises from the fact that I was asked to make the calculations based upon one single representative fortnightly period as opposed to calculating quantum over a full year or, alternatively, over the full period of the employee’s employment in that classification.
- Ms Boots for the Claimant submitted that the correct figure was $656.02 based on her contention that overtime became payable after 76 hours. Clause 5 of the Employment Contract (Exhibit E) however provides that employees usual hours of work were to average 80 hours per fortnight.
- Ms Gibbs for the Respondent argues that the employer is entitled to average out the hours of work over a four week period in accordance with clause 19.1.2 of the Award and I find that to be the case because looking at one fortnightly period alone can distort the position relating to time worked. Any given fortnightly period may not correctly reflect the average hours worked over 28 days. In fact the target fortnightly period reflects a disproportionate amount of overtime worked and thus is not necessarily reflective of a usual fortnightly pay period.
- I find that there should not be set-off for any more than two pay periods given clause 5 of the Employment Contract. It follows that with set-off applying the amount underpaid for the period in issue is $438.99, as contended by the Respondent.
- There will be orders accordingly.
RH Burton
Industrial Magistrate