WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES JOHN MARTIN WALL;

   TREVOR JAMES WARD

CLAIMANTS

-v-

Chief Executive Officer, Department of Agriculture and Food

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD Wednesday, 16 December 2009, Wednesday, 26 August 2009

DELIVERED wednesday, 16 December 2009

CLAIM NO. M 32 AND M 33 OF 2008

CITATION NO. 2009 WAIRC 01357

CatchWords Alleged failure to comply with the Public Service Award 1992 and the Public Service General Agreement 2006; Claim for 2.5 hours overtime for each week worked from 2002 until 2008; Public sector employees not paid for hours worked in excess of 37.5 ordinary hours per week specified in the Public Service Award 1992; effect of Labour Relations Reform Act 2002 on workplace agreements; Interaction between workplace agreements and industrial agreements; Statutory construction; Construction of s 4H of the Workplace Agreements Act 1993.

Legislation  Agriculture Act 1988 (repealed)

Public Sector Management Act 1994

Industrial Relations Act 1979

Workplace Agreements Act 1993

Labour Relations Reform Act 2002

Industrial

Instruments:  Public Service Award 1992

Public Service General Agreement 2002

Public Service General Agreement 2004

Public Service General Agreement 2006

Public Service General Agreement 2008

Department of Agriculture Agency Specific Agreement 2003

Department of Agriculture Agency Specific Agreement 2005

Department of Agriculture and Food Western Australia Agency Specific Agreement 2007

System of Hours Agreements 2004

Cases Referred to

In Judgement:   John Martin Wall and Trevor James Ward  v Chief Executive Officer, Department of Agriculture and Food (2007) 87 WAIG 2853, (2007) 87 WAIG 2872

Chief Executive Officer, Department of Agriculture and Food v Trevor James Ward and John Martin Wall (2008) 88 WAIG 156

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355

Robe River Iron Associates v Amalgamated Metal Workers’ and Shipwrights Union of Western Australia and Others (1987) 67 WAIG 1097

City of Wanneroo v Holmes (1989) 30 IR 362

Public Service Commissioner v Arthur Alfred Dixon (1995) 75 WAIG 1822

BHP Billiton Iron Ore Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (Western Australian Branch) [2006] WASCA 124

Cases also Cited: Amcor Limited v Construction, Forestry, Mining and Energy Union and Others [2005] 222 CLR 241

Kucks v CSR Ltd (1996) 66 IR 182

Webster v MacIntosh (1980) 32 ALR 603

Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424

AMP Ltd v Chaplin (1978) 18 ALR 385

Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

Commonwealth v Verwayen (1990) 170 CLR 394

Giumelli v Giumelli (1999) 196 CLR 101

Result Claims Proven

Representation 

Claimant Mr R Hooker instructed by Lavan Legal, appeared for the Claimant

Respondent  Mr D Matthews instructed by the State Solicitor for Western Australia, appeared for the Respondent

REASONS FOR DECISION

Background

1         The facts in this matter are uncontroversial. 

2         The Respondent employs the Claimants John Martin Wall and Trevor James Ward.  Mr Wall, a Level 2 Administration Officer, has worked for the Respondent at Merredin for 11 years.  Mr Ward, a Level 3 Financial Officer, has worked for the Respondent in Perth since 2000.  Both are public service officers.  They were initially employed pursuant to s 11 of the Agriculture Act 1988 (now repealed) and are subject to Part 3 of the Public Sector Management Act 1994 (PSMA). They are also government officers for the purpose of Division 2 of Part IIA of the Industrial Relations Act 1979 (IRA).

3         Their employment was, until 31 December 2002, governed by workplace agreements made pursuant to the Workplace Agreements Act 1993 (WAA).  The Labour Relations Reform Act 2002 (LRRA) among other effects amended the WAA so as to cease the legal operation of workplace agreements and to produce certain transitional arrangements. Pursuant to the provisions of the WAA, as amended, workplace agreements expired on 31 December 2002.  On 1 January 2003 the Claimants moved from workplace agreements to so called Statutory Contracts of Employment (SCOEs) which preserved their pre-existing terms and conditions of employment so as to ensure that they would not be worse off by the change. Their hours of work did not change.

4         In an explanatory memorandum concerning the proposed changes issued to government employees on individual workplace agreements by the Department of Consumer and Employment Protection (DOCEP) on 22 November 2002, the following statement was made:

“Hours of work will not change as a result of the ceasing of workplace agreements.  If the hours of work in statutory contracts of employment are greater than the ordinary hours provided for in awards/EBAs, the additional time worked will be treated as overtime in accordance with the provisions of awards/EBAs.  This does not necessarily mean the additional time worked will be paid as overtime.  Some awards require minimum additional time to be worked before overtime is paid.”

                                                                                                                   [Exhibit 3] 

5         From 1 January 2003 onwards the Claimants’ employment was governed by the SCOE, an award and other industrial instruments.  The industrial instruments which have at different times governed their employment have been the Public Service Award 1992 (PSA), the Public Service General Agreement 2002 (PSGA 2002), the Public Service General Agreement 2004 (PSGA 2004), the Public Service General Agreement 2006 (PSGA 2006), the Department of Agriculture Agency Specific Agreement 2003 (ASA 2003), the Department of Agriculture Agency Specific Agreement 2005 (ASA 2005), the Department of Agriculture and Food Agency Specific Agreement 2007 (ASA 2007), and the System of Hours Agreements 2004. The Claimants’ employment is currently governed by the PSA, the Public Service General Agreement 2008 (PSGA 2008), the ASA 2007, and the System of Hours Agreements 2004.

6         The workplace agreements which formerly governed the Claimants’ employment provided for the working of and payment for an average of 40 hours per week at an agreed ordinary rate. Since the expiration of the workplace agreements the Claimants have continued to work an average of 40 hours per week notwithstanding that the respective instruments that have subsequently governed their employment have provided for the working of and payment for an average of 37.5 hours per week at the ordinary rate of pay.  Since 1 April 2006 the Claimants have not been paid for all of the average 40 hours per week worked.  Indeed they have been paid for having worked an average of 37.5 hours per week. 

7         The Claimants contend that, under the applicable industrial instruments, from 1 January 2003 onwards they were entitled, as provided by Part 1A of the WAA, to continue to be paid at the ordinary rate of pay for the average of 40 hours worked each week. Their argument was rejected by the Full Bench of the Western Australian Industrial Relations Commission (WAIRC) (see Chief Executive Officer, Department of Agriculture and Food v Trevor James Ward and John Martin Wall (2008) 88 WAIG 156).  For the purpose of these proceedings the Claimants maintain that argument but say in the alternative that they should have otherwise, from 1 January 2003, been paid overtime for the 2.5 hours worked each week in excess of the 37.5 ordinary hours prescribed by the applicable industrial instruments.

8         The Respondent disputes the claims and says that the payment of 37.5 hours per week at the ordinary rate of pay, is all that is contemplated and able to be paid under the applicable industrial instruments.  In that regard the Respondent maintains that the applicable instruments prevail over the workplace agreements because of the transitional provisions of the WAA.  The effect being that any contract for work, more than an average 37.5 hours per week as ordinary time is unlawful and invalid and may not be enforced.  The Respondent says that the claims for overtime are untenable because the Claimants had never considered any part of their working week to be overtime, and in any event they were not directed to work overtime.  A direction to work overtime is a precondition for the payment of overtime.  Further, the Respondent points out that some parts of the claims fall outside the 6 year limitation period referred to in s 83A(2) of the IRA.  The Respondent also disputes the quantum claimed.

History of Litigation

9         In or about March 2007, the Claimants commenced proceedings in the WAIRC seeking certain remedies for the Respondent’s alleged underpayment of their entitlements.  The Respondent denied that the Claimants had been underpaid.  On 24 September 2007 Senior Commissioner Smith (as she then was) determined the matters and ordered that the Respondent pay each Claimant a specified amount.  She further ordered that the Respondent pay the Claimants for 40 hours per week at the ordinary rate of pay specified in the applicable industrial instruments until a variation or termination is made of the SCOE under s 4H(5) of the WAA. (see John Martin Wall and Trevor James Ward v Chief Executive Officer,  Department of Agriculture and Food (2007) 87 WAIG 2853, (2007) 87 WAIG 2872).

10      In October 2007, the Respondent appealed the decision to the Full Bench of the WAIRC.  In February 2008 the Full Bench allowed the appeal and quashed the decision of Smith SC (see Chief Executive Officer,  Department of Agriculture and Food v Trevor James Ward and John Martin Wall (2008) 88 WAIG 156).  In the course of their Reasons for Decision the members of the Full Bench expressed opinions as to the meaning of s 4H of the WAA, and with respect to the appropriate forum for enforcement. The Full Bench held that following the commencement of the LRRA on 1 January 2003, it was no longer possible for the Claimants to work 40 hours per week as ordinary hours under the PSA and the other instruments which had effect.  The Full Bench held that as from 1 January 2003 the Claimants could only work 37.5 hours as ordinary hours.  The Claimants have appealed the decision of the Full Bench.  The appeals to the Western Australian Industrial Appeal Court are yet to be heard.

These Claims 

11      The Claimants seek relief for the alleged underpayment of salary.  In each instance their claims relate to the period commencing the week ending 26 September 2002 and concluding the week ending 20 August 2009.   They contend that they should have been paid for time worked at either ordinary time, or alternatively, at overtime rates.  The Claimants recognise that success in these claims in so far as they relate to payment at ordinary rates for 2.5 hours worked each week will be difficult in light of the decision of the Full Bench.

12      Mr Ward claims an amount of $14,042.30 and Mr Wall an amount of $15,462.34.  The amounts represent the value of 2.5 hours overtime worked at time and a half, less the commuted overtime allowances which they have recently been paid.  In order to achieve industrial harmony the Respondent has, from 7 March 2008, in Mr Wall’s case, and from 4 April 2008 in Mr Ward’s case, paid each of them a commuted overtime allowance for 2.5 hours worked per week.

13      The Claimants also seek the payment of pre-judgement interest on the amounts claimed, the imposition of a penalty for the contravention of the relevant instruments, an order preventing further contravention, and costs. 

Issues

14      The pivotal issues to be determined are:

1. whether the Respondent was obliged, over the relevant period, to pay the Claimants in addition    to their fortnightly remuneration an amount for the extra 2.5 hours they worked each week; and

2. if so, the rate/s at which those amounts are to be paid.

Determination

15      From 1 January 2003 until 31 March 2006 each of the Claimants were paid 40 hours ordinary time for having worked a 40 hour week.  From 1 April 2006 the Respondent stopped paying them for a 40 hour week and instead paid them on the basis of having worked 37.5 hours per week.  Notwithstanding this, the Claimants continued to work 40 hours per week in accordance with their contracts of employment. 

16      Employees are entitled to be paid for all hours worked pursuant to their respective contracts of employment (see Chief Executive Officer, Department of Agriculture and Food v Trevor James Ward and John Martin Wall (supra) per Beech CC at [186] and Wood C at [193]).

17      In these matters the undisputed fact is that each Claimant has, during the period of the Claim, except when on leave for various reasons, worked 40 hours each week. Notwithstanding that as from 1 April 2006 they have only been paid for 37.5 hours of the 40 hours worked.  The Respondent suggests that the Claimants have brought the situation onto themselves by choosing not to terminate the SCOE under which they are currently employed.  If they were to terminate the SCOE they would work and be paid for 37.5 hours per week.  Indeed, they choose to continue to work 40 hours per week knowing that they can only be paid for 37.5 hours per week at the ordinary rate of pay.  In my view such a criticism of the Claimants is harsh, particularly given that statutory provisions preserved their contractual entitlement to work 40 hours per week.  The statutory provisions were enacted to ensure that they would not be disadvantaged by what was contained in the LRRA.  In the end the Claimants have been doing no more than to exercise their contractual entitlements.  It is unfair to blame the Claimants for the protracted dispute.  

18      The Respondent submits that it is not true to contend, as the Claimants do, that 2.5 hours worked each week have not counted for anything.  Rather the true position is that the Claimants have been paid at least that which they have been contracted to receive pursuant to their respective workplace agreements.  It follows therefore they have been paid for work that they have done and that no unfairness results.  That submission is, with respect, illusory.  It ignores industrial reality. The Claimants have been paid at an hourly rate for 37.5 hours worked with the result being that they have not been paid for 2.5 hours worked each week.  If the Respondent’s contention is correct it would not have mattered whether they worked 40 hours or alternatively 37.5 hours because in either case they would have received the same amount of weekly pay.  It follows that the 2.5 hours worked in addition to the 37.5 hours will have been for nothing. 

Claim to be Paid at Ordinary Rates

19      The Claimants’ starting position is that they should have been paid at ordinary rates for the additional 2.5 hours worked each week.  The Full Bench of the WAIRC in Chief Executive Officer, Department of Agriculture and Food v Trevor James Ward and John Martin Wall (88 WAIG 156) held that following the commencement of the LRRA on 1 January 2003, it was no longer possible for them to work 40 hours per week as ordinary hours under the PSA and the various General Agreements which have had affect since then.  The Claimants could only work 37.5 hours as ordinary hours.

20      Although the Claimants seem to dispute the correctness of that decision I am bound to follow it.  Accordingly, the unpaid 2.5 hours worked each week cannot be paid at ordinary rates.  The Respondent says that the Claimants’ claim for payment of overtime does not arise because they never considered they were working 2.5 hours overtime each week.  Rather the claim is made because the Full Bench rejected their claims that they be paid at ordinary rates.  Consequently the claims for payment of overtime have been brought notwithstanding there is no evidence to support it.  The Respondent submits that there is no basis upon which the Claimants may be renumerated for the 2.5 hours worked each week in addition to their ordinary hours. 

Claim for Overtime

21      The 2.5 hours per week over and above the 37.5 hours per week worked may be paid at overtime rates if the Claimants are able to demonstrate that such is required by the industrial instruments that regulated their employment. 

22      The Respondent submits that save for the fact that the General Agreements prescribe that no more than 37.5 hours per week may be worked as ordinary hours, the hours of work of the Claimants were regulated by the Agency Specific Agreements which have been in place since 1 January 2003 and the System of Hours Agreements made under them which have been in place since 2 January 2004.  The Respondent says also that the Department of Agriculture Agency Specific Agreement 2003 had application from 1 January 2003 and that Clause 10.10 thereof, which relates to overtime, did not  apply.  Further, no evidence was brought to support coverage of the Claimants within Clause 10.9 of that Agreement which relates to additional hours worked in excess of 75 credit hours.

23      The Respondent points out further that the System of Hours Agreements which applied to the Claimants from 2 January 2004 provided that penalty rates would only apply for time in excess of 30 minutes worked outside of the 12 hours standard flexi time period between Monday to Friday, weekends and public holidays.  Given that both Claimants submitted that the System of Hours arrangements applied to them and that they had been enjoying the benefits of that system, that is, accumulating and clearing credit hours, it has not been shown that any part of the Claimants’ claims were covered by the System of Hours Agreements which entitled them to the payment of overtime.  Finally the Respondent argues that the General Agreements provide that the Agency Specific Agreements prevail over General Agreements and the PSA to the extent of any inconsistency except when the General Agreements identify a condition as a core condition.  The overtime conditions are not identified as core conditions.  The Agency Specific Agreements and System of Hours Agreements made under them provide that penalty rates will only apply for time in excess of 30 minutes worked outside of the 12 hours standard flexi time period.  This has precedence over differing provisions in the General Agreements or the PSA for those employees such as the Claimants who take advantage of the flexi time arrangements.

24      The implicit contention by the Respondent is that the Claimants are not entitled to be paid for the 2.5 hours worked in excess of the ordinary hours, in excess of ordinary time.  The issue to be determined is whether, on a proper construction of the applicable industrial instruments, the extra 2.5 hours worked each week was payable at overtime rates.  That of course requires the construction of the applicable instruments.

25      The contemporary approach to construction which stems from Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 is that factors such as purpose, general policy and context have to be taken into account rather than just the literal meaning of a provision so as to create consistency and fairness.  The interpretation of the relevant industrial instruments in these matters begins with a consideration of the words used and their natural meaning but they cannot be interpreted in a vacuum divorced from industrial realities.  (See City of Wanneroo v Holmes (1987) 30 IR 362 per French J at 378 and BHP Billiton Iron Ore Pty Ltd v  Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (Western Australian Branch) [2006] WASCA 124 per Pullin J at [19] - [23]).

26      A consideration of the applicable industrial instruments must start with the Award from which all other instruments flow.  Clause 11(3)(d) of the PSA provides that the hourly rate shall only be applied to an average of no more than 37.5 hours per week worked as ordinary hours whether under the PSA or the SCOE.  It follows that the issue to determine is whether the 2.5 extra hours worked was done so as overtime.  Clause 22 of the PSA contains the overtime provisions. Subclause 22(1)(a) of the PSA defines “overtime” to mean:

“….all work performed only at the direction of the employer or a duly     authorised officer outside the prescribed hours of duty.”

27      Subclause 22(3)(a) of the PSA states when and how overtime is to be paid. It provides:

“An officer who works overtime for a greater period than 30 minutes, shall be entitled to payment in accordance with paragraph (d) of this subclause, or time off in lieu of payment in accordance with paragraph (b) of this subclause, or any combination of payment or time off in lieu.”

28      What is readily apparent from the aforementioned provisions is that working overtime for a period greater than 30 minutes, entitles the employee to the payment of overtime, to time in lieu or a combination of both.  There has been no suggestion made in these matters that the Claimants have been offered time in lieu or a combination of time in lieu and overtime for the extra 2.5 hours worked each week.  Reference to the 30 minute period in the PSA is not expressed to apply to any particular period whether it be a day or a week.  The Claimants’ contend that Clause 22(3)(a) of the PSA is designed to preclude claims for overtime for short ad hoc periods arising from time to time, the duration of which is not more than 30 minutes.  It is not designed to restrict access to the entitlement where, as an ongoing arrangement or sustained course of conduct, an employee regularly works in excess of 37.5 hours per week.  There seems to be force in that argument and I accept that that is a better contextual construction of that particular provision. 

29      The 2004, 2006 and 2008 General Agreements provide with respect to “Hours” that the provisions of the relevant clauses in each instance replace the PSA provision relating to “Hours”.  The relevant clauses with respect to overtime provide inter alia that where an employee is directed by the employer to work more than 7.5 hours in any one day, that overtime applies.  In that regard, the Respondent argues that the Claimants were never directed to work overtime which was a necessary pre-condition to their payment of overtime.  On the other hand the Claimants argue that a specific direction was not necessary and that a direction or requirement to work overtime could be satisfied by implication. That argument is supported by the finding of an Industrial Magistrate sustained on appeal by the Full Bench in Public Service Commissioner v Dixon (1995) 75 WAIG 1823.

30      The express terms of their contracts of employment required the Claimants to work 40 hours per week, which they did.  The Respondent knew, however, that the Claimants could not be paid for any more than 37.5 hours worked per week at the ordinary rate. The Respondent was therefore conscious of and acquiesced to that ongoing arrangement in which the Claimants worked an extra 2.5 hours per week.  Indeed the proforma time sheets created by the Respondent reflected a 40 hour per week regime.  There was an expectation by the Respondent that the Claimants would work 40 hours for the week. In those circumstances the Respondent implicitly directed and/or required the Claimants to work an extra 2.5 hours per week in overtime.

31      The Claimants have conceded in their evidence that they were not given a specific direction to work overtime.  That however, is not fatal to their claims.  The reality of their situation was that they were contractually obligated to work 40 hours per week but only 37.5 hours of those hours could be paid at ordinary time. It follows that the remaining 2.5 hours were required to be worked as overtime because the alternate position would be that they would have provided their employer with 2.5 hours labour for no reward.  A direction to work overtime resulted by implication in their circumstances by virtue of their contracts of employment.  The Respondent acquiesced to the ongoing performance of 40 hours work each week but now says that the Claimants should not be remunerated for any more than 37.5 hours worked.  That is patently unfair and offends the principle that employees should be paid for hours worked.  That is particularly so in this instance where the Claimants did not go off on a folly of their own.  The extra 2.5 hours was worked by agreement and in the full knowledge of the Respondent.  In those circumstances the Respondent is estopped from denying the Claimants were required, and by implication directed, to work an excess of 2.5 hours per week over and above the 37.5 hours ordinary time. 

32      The Respondent says that in any event the ASAs prevail over the PSA and General Agreements and as a consequence whether or not a direction was given is of no significance.  Accordingly I need to consider whether the ASAs prevail over the General Agreements and the PSA.

33      The General Agreements provide, except where the General Agreement identifies conditions as core, that the ASA will prevail over the General Agreement and the PSA.  The overtime provision in each of the General Agreements is not expressed to be a core condition.  The ASAs will assume ascendancy over both the General Agreements and the PSA to the extent of any inconsistency.  Clause 5 of the ASAs make it clear that the ASAs do not replace the General Agreement to which it relates and that it should be read together with the PSA and the General Agreement.  In each instance, Clause 10 of the ASAs deals with the System of Hours.  They provide for flexible working hours, permitting the storage of extra hours worked to be credited within certain limits and thereafter debited.  The express reference to overtime, other than in circumstances where flexible working arrangements have been exhausted, relate only to the circumstances when not less than 24 hours notice is given to work outside those outlined in Clause 10 and further, in circumstances where a declared emergency exists.  It follows that the ASA provisions with respect to overtime are discreet and are particular to situations which do not apply to the Claimants.  In those circumstances there is no conflict between the ASA overtime provisions and those contained in the PSA and General Agreements.  The PSA and General Agreement provisions are not excluded.  

34      The Respondent’s contention that the System of Hours Agreements, which at Clauses 6 and 7 provide that overtime penalty rates apply only for time worked in excess of 30 minutes outside the 12 hour standard flexi time period between Monday to Friday, weekends and public holidays, seems at first instance to have force.  Indeed, Clause 10 of the ASAs provides inter alia that work groups or work sites may develop their own System of Hours.  The Claimants in each instance were part of work sites that developed their own System of Hours which addressed the issue of payment of overtime.  However the question which arises is, whether the ASAs provided the requisite legal source to exclude that provided by the General Agreements and the PSA.  The answer to that question is no.  There were inherent limitations in what the System of Hours Agreements could provide and in so far as the System of Hours Agreements purports to exclude the overtime entitlements provided by the General Agreements and the PSA, it cannot operate to that effect.  Indeed, that which was provided for by the Systems of Hours Agreements was extraneous to and not contemplative of the ongoing arrangement to work an extra 2.5 hours each week. Clause 3 of the Systems of Hours Agreements reflects that employees work a daily average 7.5 hours.  The Claimants however, by virtue their respective SCOE, are expected to work an average of 8 hours per day.  The creation of the System of Hours Agreements was predicated on a false premise that all employees covered by the agreements work an average of 37.5 hours per week. That however is not the case and was not the case for the Claimants. It follows that the specific overtime provisions therein can only relate to employees who work an average of 37.5 hours per week and cannot have the effect of excluding the Claimants’ entitlement to overtime for 2.5 hours worked each week. 

Are the Claimants Entitled to be Paid for the 2.5 Hours Worked Each Week in Excess of their Ordinary Time?

35      The Respondent says that the protracted dispute stems from the Claimants’ refusal to accept that they cannot work 40 hours per week and be paid at ordinary rates.  That however, ignores the fact that their respective contract of employment obligated them to work 40 hours per week, which they did.  Of course they could only be remunerated at ordinary rates for 37.5 of those hours.  The implication of the Respondent’s submission is that the remaining 2.5 hours worked per week amounted to nothing and should not be remunerated.  The Respondent’s contention is that the Claimants have been paid at least what they had contracted to receive pursuant to their workplace agreements.  That however, fails to recognise that the Claimants were contractually entitled to work 40 hours per week and be remunerated accordingly.  The Respondent’s argument also seems to ignore the industrial reality of the Claimants’ situation and suggests an absurd result in that the Claimants are entitled to same amount of pay irrespective of whether they have worked 37.5 hours or 40 hours per week. 

36      Although it is true to say that the Claimants cannot be paid at ordinary rates for 40 hours it does not follow that the Respondent should receive the benefit of the their efforts over 2.5 hours per week for free.  The Claimants are entitled to be remunerated in some form with respect to those 2.5 hours worked.  Given that there were no other alternative arrangements made and given that the Claimants were by implication, required and directed to work overtime it follows that in respect to the 2.5 hours worked each week they should have been paid for their endeavours at the overtime rate.  If the Respondent’s argument were to be accepted it would result in the Claimants being be worse off than they had been under their respective workplace agreements because their paid hours would have been reduced.  In those circumstances their terms and conditions will not have been preserved but rather would have been unilaterally altered.  That would be contrary to the representations made by DOCEP.

Quantum

37      Section 83A(2) of the IRA provides that an order may only be made in respect of an amount relating to a period being not more than 6 years prior to the commencement of proceedings.  Given that the proceedings were commenced on 6 June 2008 orders may only cover the period 6 June 2002 to 6 June 2008 with the later date being excluded.

38      There can be no claim for the period 6 June 2002 to 31 December 2002 in any event given that the Claimants were, during that period being paid in accordance with their respective workplace agreements.  From 1 January 2003 to 31 March 2006 the Claimants were paid at the ordinary hourly rate for 40 hours per week.  Accordingly the Claimants were entitled to be paid an extra 0.5 times the hourly rate for 2.5 hours worked each week during that period in which they worked 40 hours.  For the period 1 April 2006 to 6 March 2008 in Mr Wall’s case and to 3 April 2008 in Mr Ward’s case, they were entitled to the payment of 2.5 hours worked for each week in which they worked 40 hours at time and a half.  From 7 March 2008 in Mr Wall’s case and 4 April 2008 in Mr Ward’s case, the payment for 2.5 hours per week was covered by a commuted overtime allowance pursuant to Clause 10 of the 2007 ASA (see Exhibits 1 and 4). 

39      The Claimants contend that from the commencement of their respective agreements to 6 June 2008 they should be paid an increment reflecting the margin in excess of the commuted overtime allowance represented by 1.5 times 2.5 hours each week.  The Respondent on the other hand says the payment for 2.5 hours per week was covered by a commuted overtime allowance which, by its very nature, must extinguish the claims for overtime during that period.  Clause 10.10 of the 2007 ASA enables hours of “accrued ordinary hours” (my emphasis) to be converted into a monetary equivalent representing an additional 8% of an employee’s salary.  The first observation to be made with respect to this provision is that it follows the flexi time provisions in the preceding clauses.  The subclause is clearly aimed at a situation where extra hours are worked as ordinary hours in contemplation of receiving time in lieu but where time in lieu cannot be cleared as agreed and as a consequence the hours are to be paid out as overtime.  The commuted overtime allowance operates in those circumstances.  That, however, did not have application in these matters where the Claimants worked overtime as opposed to accrued ordinary time in lieu.  It seems to me that there is no proper legal foundation for the introduction of the commuted overtime allowance agreements entered into, and accordingly the Claimants are entitled to recover the difference between what they have been paid and that to which they are entitled.

40      The Respondent submits that there is no evidential basis whatsoever to properly determine when overtime was worked and no evidential basis for the proper calculation of the quantum payable.  The Claimants worked an average of 40 hours per week and on that basis they claim that they should be paid 2.5 hours per week as overtime.  The Respondent points out that no attempt has been made to demonstrate on what days overtime has actually been worked.  It follows therefore that the Claimants’ claim is a blanket claim for 2.5 hours per week regardless of how many hours were actually worked in any given day or in any given week. 

41      Although the quantification of the Claimants’ entitlements is not easy to achieve it does not follow that their claims ought to be rejected.  Indeed, there is documentary evidence before me in the form of time sheets (see Exhibits 1 and 4) and in the summaries created by Mr Durnin (see Exhibits 5 and 6) which if collated, are capable of precisely establishing the hours worked by each Claimant for each day and each week over the relevant period. The documentary evidence is also capable of establishing the leave periods taken in various forms during which overtime cannot be paid.  The precondition for the payment of overtime is the actual performance of work.  The Claimants submit that they are entitled to the payment of 2.5 hours per week at single time in addition to the 37.5 hours per week paid whilst on leave.  In my view, the Full Bench has made it clear that such is not permissible. 

42      It is not correct to say, as the Respondent does, that there is no evidential basis whatsoever to determine the overtime worked and the quantum payable.  Clearly the evidence required with respect to those issues is before the Court.  That evidence however is not in a compendious form.  A determination of the issue requires a laborious examination of records appertaining to each Claimant over 6 years and calculations that flow from such examination.  In my view, valuable judicial time will not be well served by trawling through the documents to ascertain the precise quantum payable.  I accordingly invite the parties to calculate the quantum in accordance with these Reasons for Decision. What is required is the identification of each week from 1 January 2003 until 6 June 2008 in which the Claimants actually worked 40 hours.  The performance of 40 hours work is a pre-requisite to the payment of overtime.  For each of those weeks 2.5 hours overtime is payable. Overtime is not payable whilst the Claimants were on leave or where the combination of leave taken and work performed did not amount to 40 hours.  For the period 7 March 2008 in Mr Wall’s case and 4 April 2008 in Mr Ward’s case to 6 June 2008, the payments received by them in the form of a commuted overtime allowance needs to be setoff against their entitlement.

G Cicchini

Industrial Magistrate