WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION, WESTERN AUSTRALIAN BRANCH

CLAIMANT

-v-

Curtin University of Technology

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD Wednesday, 15 March 2006, Wednesday, 5 April 2006

DELIVERED Wednesday, 12 April 2006

CLAIM NO. M 82 OF 2005

CITATION NO. 2006 WAIRC 04213

CatchWords Enforcement of certified agreement; Out of Hours Contact Allowance for General Staff; Supply of mobile telephone; Whether instructed to be "on-call".

Legislation Workplace Relations Act 1996

Curtin University of Technology General Staff Certified Agreement 2000-2003

Result Claim not made out.

Representation 

Claimant Mr M Swinbourn of the Claimant appeared for the Claimant

Respondent Mr I Curlewis (of Counsel) instructed by Lavan Legal appeared for the Respondent

REASONS FOR DECISION

Background

1         The Claimant is an organisation registered pursuant to the provisions of the Workplace Relations Act 1996 (the Act).  The Respondent is and was at all material times a body corporate under and subject to the provisions of the Curtin University of Technology Act 1966 in its provision of educational services in Western Australia.  The Claimant and Respondent are parties to the Curtin University of Technology General Staff Certified Agreement 2000-2003 (the Agreement) registered in accordance with section 170LJ of the Act.  Mr David Brown, an employee of the Respondent was at all material times a member of the Claimant.  In May and June of 2003 (the material time) Mr Brown was a team leader within the Respondent’s Security, Parking and Traffic Department.  The Manager of that Department at that time was Mr David Gries.  He, in turn, reported to Dr Allan Verdonk, the Director of Facilities Management.  Mr Grant Quartermaine acted as manager in Mr Gries absence.

2         On 29 May 2003 Mr Gries prepared a minute (exhibit 2) which was delivered to Mr Brown by Mr Grant Quartermaine on or about 10 June 2003.  The minute which related to the provision of a mobile phone to each team leader stated:

Security team leaders are being issued with a mobile phone each.  The usage of the mobile phone will be recorded on individual accounts in the name of each security team leader.  Each mobile phone is to be used specifically for work issues only.

The following points are to be adhered to at all times:

1. The mobile phone is to be kept in good condition at all times.

2. If the mobile is lost or stolen please report to the control room immediately and email the Manager outlining all details.  A replacement, depending on circumstances, will be authorised by the Manager only.

3. The administrative assistant upon, (sic) the Manager’s approval will pay accounts for the mobile phone.  However, any phone numbers that are not work related are to be highlighted and security team leaders must pay any of the outstanding amounts.  Please see the administrative assistant to obtain relevant paperwork and cost centre with line item to take to the cashier.  The amounts will include GST and accounts are payable within 14 days.

4. If there is a fault with the mobile phone please report to the control room immediately and email the Manager and administrative assistant with details of the fault.

5. You are encouraged to carry the mobile at all times.  This will assist in being able to contact security team leaders in the case of emergencies on campus.

Your mobile number is ……....  On signing this document you are acknowledging and compiling (sic) with the points listed from 1 – 5 above.

Evidence

3         Mr Brown acknowledged receiving the aforementioned minute from Mr Quartermaine on 10 June 2003.  He said that when he first received the minute he read it and then advised Mr Quartermaine that he did not want a mobile phone.  Mr Quartermaine told him not to make waves, that Mr Gries wanted it to happen and that he should accordingly sign the acknowledgement of the receipt of the minute.  Mr Quartermaine asserted in his evidence that such discussion did not take place.  Mr Brown testified that he was “virtually” told by Mr Quartermaine that he should carry the mobile phone at all times.

4         Mr Gries testified that in preparing the minute to be given to Mr Brown and other team leaders, he intended that the issuance of a mobile phone would facilitate their return to work in the event of an emergency on campus.  He believed that the minute he prepared constituted an instruction to team leaders to be on call.  When cross-examined Mr Gries acknowledged that any failure to carry the mobile phone or respond to calls made to it outside of work hours would not result in disciplinary action being taken.  There would be no consequence.  He also confirmed that no team leader was ever “rostered” to be on call.  Further there were no constraints on team leaders requiring them to be contactable at all times and to be in a fit and proper state to return to work.

5         Mr Brown testified that having received the mobile phone he carried it at all times.  Although the minute reads that he was “encouraged” to carry it at all times, he took that to be an instruction that he should carry it at all times.  That was particularly so given Mr Gries’ character which did not permit dissention.  Consequently he carried the mobile phone at all times and remained contactable.  He regarded himself to be on call at all times, day and night, outside his rostered hours.  Indeed he was contacted after hours for the purpose of obtaining details of incidents that had occurred during his shift and also for the purpose of facilitating his return to work.

6         Mr Brown said that the requirement that he carry the mobile phone ceased on 22 June 2003.  He subsequently made a claim for the payment of an “on-call allowance” for the period that he was on call, but the same has never been met by his employer.

7         When cross-examined Mr Brown acknowledged that he did not consider himself to be “on call” when debilitated by sickness.  Furthermore he conceded that there was never any roster enacted which showed that he was “on call”.  Importantly Mr Brown conceded that he felt that he was not restricted in drinking alcohol whilst off duty or doing anything else that might render him unfit to return to work.  Furthermore he also acknowledged that there was no restriction to him leaving his home for the purpose of fossicking in the outback, which was one of his pastimes.  He acknowledged that if he were to do that he would be un-contactable and would not be able to return to work immediately.

8         Mr Brown also conceded that the use of mobile phones would occur in certain circumstances whilst on duty when the use of two-way radios, which was the predominant form of communication, was not appropriate.  However he understood the term “at all times” expressed in the minute to be a reference to his after hours situation.

9         Lynette McNab, one of the other team leaders employed by the Respondent, testified that team leaders were, at the material time, required to carry the mobile phone issued at all times so that they could be contactable.  Indeed team leaders were contacted out of hours for various reasons.

10      Dr Verdonk was called to testify by the Respondent.  He told the Court that any employee who was required to be on call was rostered as such.  There was never a situation where an employee was on call at all times outside of normal work hours without being rostered for such.  He said that he never authorised any “on-call roster” for the Security, Parking and Traffic Department and did not know of its existence.

11      When cross-examined, Dr Verdonk conceded that Mr Gries had the authority to issue the minute that he issued dated 29 May 2003.

12      Mr Quartermaine, in his evidence, rejected Mr Brown’s contention that there was, on 10 June 2003, a discussion between them concerning the mobile phone.  He said that he did no more than to hand over the telephone which Mr Brown acknowledged receipt of.  He told the Court that he was responsible for the creation of the rosters and there was no provision within the rosters for any team leader to be on call.  It was his view that mobile phones had been issued to be used on campus.

13      Mr Quartermaine acknowledged under cross-examination that team leaders would be contacted out of hours by mobile phone if attempts to contact them by land line failed.

Conclusion

14      The starting point in the determination of this matter must be the consideration of the relevant “on-call provision” within the Agreement.

15      Clause 30.7 and, in particular, subclause 30.7.1 provide:

30.7    Out of Hours Contact Allowance for General Staff

30.7.1 For the purpose of this sub-clause ‘on-call’ shall mean an instruction to a staff member to remain at a place of residence or otherwise to be available for immediate contact in the case of a re-call to duty away from such place of residence or otherwise to be available.

A staff member who is required to be on-call during a period off duty shall be paid an allowance of $3.10 for each hour or part thereof the staff member is on-call.

The University shall provide a mobile phone or reimburse the telephone rental charges for a staff member in receipt of the allowance.

Where a staff member rostered for on-call duty is called to duty during the on-call period, then payment for hours worked will be in accordance with the overtime provisions.  The on-call allowance is not payable during a period where overtime is paid.  The limitations prescribing eligibility for overtime payment shall not apply to a staff member in receipt of on-call allowance.

16      It is noted that the heading in clause 30.7 makes reference to “Out of Hours Contact”, however, the substantive provisions in subclause 30.7.1 provide for the payment of an allowance for each hour or part thereof that the staff member is “on-call”.

17      “On call” is defined within the subclause to mean:

.....an instruction to a staff member to remain at a place of residence or otherwise to be available for immediate contact in the case of a re-call to duty away from such place of residence or otherwise to be available.

18      It is common ground that Mr Brown was not instructed to remain at a place of residence or to otherwise be available for immediate contact in the case of a recall to duty away from such place of residence.  Indeed Mr Brown’s own testimony indicated that there was nothing stopping him from leaving the metropolitan area to effect his hobby of fossicking.  If he left the metropolitan area for that reason it would have been impossible for him to have returned to duty.  The on-call provision facilitates contact ability and availability for the purpose of a return to work.  Furthermore Mr Brown conceded that whilst off duty he consumed alcohol which might have affected his ability to return to duty.  In those circumstances he would not have been available.  It seems therefore that Mr Brown was not required at all times to be available to return to duty but, at best, was required to be contactable in case of emergencies on campus.

19      Despite the heading of clause 30.7, contact ability alone is not that which is contemplated by subclause 30.7.1.  The clause contemplates a recall to duty.  Paragraph 5 of the minute dated 29 May 2003 (exhibit 2) did not require Mr Brown to be available for recall to duty.  Indeed it did not constitute a requirement or instruction at all.  The paragraph bears repeating.  It states:

You are encouraged to carry the mobile at all times.  This will assist in being able to contact security team leaders in the case of emergencies on campus.

(my emphasis added)

20      The Shorter Oxford Dictionary defines “encourage” to mean:

. . . to recommend, to stimulate, to countenance . . . to foster.

“Instruction” is defined in the same Dictionary to mean:

Making it known to a person what he is required to do; a direction, an order, a mandate.

21      Paragraph 5 of the minute, when read alone, does not constitute an instruction as required by subclause 30.7.1 of the Agreement.

22      It is argued by the Claimant that the same must be viewed in the context of Mr Brown’s work situation and Mr Gries tough stance with respect to loyalty.  When that is done the word “encouraged” is said to convey the same meaning as “instruction”.  Indeed that was the way in which Mr Brown responded to it.  He took it as an instruction and acted accordingly.

23      The fact that Mr Brown chose to treat what was said as an instruction is not determinative.  The fact is that it was not an instruction and could not be construed as such.  It was not mandatory.  Any failure to comply would not have and could not have resulted in disciplinary or other form of action.  There was no basis for it.  Mr Gries testified that any failure to comply would have no consequence.  The admitted lack of consequence belies any contention that what was said was an instruction.  Furthermore it is not the case that Mr Brown was totally constrained in his affairs.  He was able to leave the metropolitan area and remain out of contact if he wanted.  He was able to drink alcohol to the extent that he might not be fit to return to duty.  In those circumstances it cannot be said that he was on call, notwithstanding what Mr Gries might have intended.  The effect of what was done did not amount to an instruction to be on call.  Accordingly the Claimant has not succeeded in establishing on the balance of probability that Mr Brown was on call.

24      Finally, much has been made about whether Mr Quartermaine instructed Mr Brown to be on call.  In that regard I find the evidence equally balanced.  There is no particular reason to find one way or the other as to whether the actual conversation took place.  Having said that, even if it is the case that Mr Quartermaine said those things as alleged by Mr Brown, that of itself or in combination with exhibit 2 does not amount to an instruction to Mr Brown to remain on call.

25      The mobile phones were issued to team leaders to assist the Respondent to contact them in case of emergency.  The team leaders were encouraged to carry the same to enable contact; however, there was no consequence if they did not carry the mobile phones.  Given those circumstances, they were no more than a tool aimed at achieving easy access if the need arose.  The supply of the mobile phones, together with the encouragement that team leaders carry the same at all times, did not amount to the team leaders, including Mr Brown, being on call.

26      The claim is not made out.

G Cicchini

Industrial Magistrate