WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES DANNY MICHAEL PAGODA

CLAIMANT

-v-

Wesley College

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE W.G. TARR

HEARD WEDNESDAY, 20 DECEMBER 2006, WEDNESDAY, 24 JANUARY 2007, THURSDAY, 25 JANUARY 2007, THURSDAY, 29 MARCH 2007

DELIVERED Thursday, 5 April 2007

CLAIM NO. M 89 OF 2006

CITATION NO. 2007 WAIRC 00394

Result Claimant found to be part-time employee.

Representation 

Claimant  Mr M Holler, instructed by W L & K J Everett, Barristers & Solicitors, appeared for the Claimant.

Respondent  Mr M Jenson, instructed by Lavan Legal, Lawyers   appeared for the Respondent.

SUPPLEMENTARY REASONS FOR DECISION

1         These Supplementary Reasons for Decision deal with the question of whether the Claimant was a full time or part time employee.

2         The Independent Schools (Boarding House) Supervisory Staff Award No A 9 of 1990 (the Award), in this case, provides for part time employees in clause 9 and that clause reads:

9. – PART TIME EMPLOYEES

(1) Notwithstanding anything contained in this award, a part time employee may be employed for less hours per week than are usually worked in the boarding house by full time employee.

(2) A part time employee shall be paid salary and receive payment for vacation leave, sick leave and long service leave, at a rate in proportion that the employee's hours bear to the usual full time hours per week at that boarding house.

3         Nowhere in the Award are the hours per week that are usually worked in the boarding house by a full time employee.

4         Clause 7 of the Award provides for hours of duty as follows:

7. – HOURS OF DUTY

(1) Subject to this award, the working days and hours of duty shall be determined by written agreement between the employer, the employee and the union.

(2) In the event of no agreement being reached in regard to hours of duty then the matter may be referred to the Western Australian Industrial Relations Commission for determination.

5         There is no evidence before me of any written agreement between the employer, the employee and the union, nor any evidence of the matter being referred to the Western Australian Industrial Relations Commission for determination.

6         Clause 8, under the heading Rosters, provides:

(1) The hours of duty for each employee shall be set out in a roster which shall contain the following details:

(a) the name of the employee/s;

(b) the starting and finishing times of each employee's shift, including any breaks which may be required during such shift;

(c) the day/s on which each employee is off duty.

(2) Such rosters shall be drawn up and posted one week in advance and may only be altered by agreement between the employer and the employee concerned.

(3) Where agreement cannot be reached, pursuant to subclause (2), the employer may change the roster provided that not less than twelve hours notice of such change is given to any employee so affected.

7         The Minimum Conditions of Employment Act 1993, in part 2A, deals with reasonable hours of work, and in section 9A provides:

9A.     Maximum hours of work

(1) An employee is not to be required or requested by an employer to work more than –

(a)  either –

(i)  the employee's ordinary hours of work as specified in an industrial instrument that applies to the employment of the employee; or

(ii) if there is no industrial instrument that specifies the employee's ordinary hours of work, 38 hours per week;

. . .

8         It is generally the evidence of and for the Claimant that he was rostered to work one evening roster (usually on a Tuesday between 5.00 pm and 11.00 pm) per week and one morning roster per week (usually on a Wednesday between approximately 7.00 am and 8.30 am) in each week of each school term.

9         Resident Masters were also rostered and were required to be on duty on weekends during each term.  The evidence before me is conflicting as to the actual requirement.  There appears to be a requirement for each to work five or six full day duties per year, plus about four shifts involving Friday, Saturday or Sunday evenings, and/or a support Master on Duty duty each term.

10      The hours for the weekend rosters are set out hereunder:

Friday                    5.00 pm to Midnight

Saturday                7.30 am to Midnight

      or                     6.00 pm to Midnight

Sunday                   8.00 am to 11.00 pm

      or                     5.00 pm to 11.00 pm

11      Although I have been told the terms are of ten weeks' duration, the roster suggests staff are not rostered for week ten for many terms, and term four was usually an eight week term.

12      On average the Claimant would be rostered to work one full day per term between 7.30 am and Midnight, a total of sixteen and a half hours, and four evening shifts of six or seven hours.  A total of about forty four and a half hours per term, averaging approximately five hours per week or a total of about twelve and a half hours per week when added to the Tuesday evening and Wednesday morning commitment.

13      I accept the Claimant's evidence that there were many occasions when he was not rostered for duty and in residence that he was involved with the boarders in some way or another and there was an expectation that he would not turn a blind eye but deal with issues that might arise.  However, when he was not rostered on duty, he was under no obligation to remain in the residence.  That allowed the Claimant to engage in other employment, including with Wyvern Academic Services between April 2001 and May 2002, and in a full time capacity with the Western Australian Farmers Federation from November 2003 until the date of termination with the respondent in 2005.

14      There were other Resident Masters on duty that had a formal obligation to perform the duties of a Master on Duty, and even between Midnight and 7.00 am when no one was rostered; there were other Resident Masters living in and a Head of Boarding not far away.

15      Notwithstanding the Claimant's involvement when not rostered on duty, this is a claim alleging a breach of the Award, and I am required to consider the claim applying the terms of the Award and the obligation of the employer under the Award.

16      I have noted the Award does not specify the hours of duty which would apply to a full time employee, but provides that the hours of duty shall be set out in a roster and they are the hours for which the Award has application.

17      I have referred to the Minimum Conditions of Employment Act 1993, and that provides for ordinary hours of work to be 38 hours per week if not specified in any industrial instrument.  It follows, in my view, that to be classified a full time employee; the Claimant would have to be rostered on duty for 38 hours per week.

18      The evidence before me is that he was rostered on duty approximately twelve and a half hours per week, on average, and it follows in my view that the Claimant was employed for “less hours per week than are usually worked in the boarding house by a full time employee”.  The Respondent's obligation under the Award is to pay him “at a rate in proportion that the employees' hours bear to the usual full time hours per week”.

19      It has been suggested that there should be a so-called “set off” to take into account the value of accommodation and meals provided.  The provision of those benefits were not as a result of any award obligation on the Respondent and, in my view, the principles of “set-off” described by Anderson J in the case of James Turner Roofing v Peters 83 WAIG 427 have no application.

WG Tarr

Industrial Magistrate